\ 



PROCEEDING'S 



IN TIiE 




1\) 



7 %^ _ 



AT 



C O T. TJ M B I A. . S . C 



IN 



m UNiiED mm mm m 



NOVEMBER TERM, 1871. 



PRINTED FROM GOVERJSTMENT COPY. 



COLUMBIA,S. C. : 

KEPUBLICAN PRINTING COMPANY," STATE PRINTERS. 

1872. 



^^l Z)ai,c 






ng-i^'s^^ 



Reporters' Note. 



5 

^ The following pages contain a report of the proceedings before the 

^ Circuit Court of the United States, at Columbia, S, C, in what are 

^ known as the Ku Klux Cases. That portion of the publication which 

% embraces the arguments on the motion to quash the indictment in the 

^"> case of the United States vs. Allen Crosby, et al., and the evidence 

*2, and arguments in the case of the United States vs. Robert Hayes Mitchell, 

et al., is strictly a verbatim report of all that occurred. The evidence' in 

the case of the United States vs. John W. Mitchel and Thomas C. 

Whitesides is also verbatim, but the remainder of the report is somewhat 

condensed. In the latter caKse, the arguments are verbatim, so far as 

they relate to questions of general interest, in connection with these Ku 

Klux prosecutions, and are condensed only in their references to the 

alibi which the defence attempted to prove. 

The evidence in the causes tried subsequently is considerably con- 
densed, but no material fact that appeared, and nothing which occurred 
to indicate the animus of witnesses, on either side, has been omitted. 

The report of the case of Edward Y. Avery is much more complete 
than that of John S. Miller, and the statements of those prisoners who 
pleaded guilty are abstracts only to the extent of the omission of a 
large number of the questions. 

B. P. 
L- F. P, 



Introductory Part 



On the 27t;h day of Noveniber, 1871, the United States Circuit Court 
convened at Columbia, S. C. ' The Hon. Hugh L. Bond, of Maryhmd, 
Circuit Judge, presided, and, the Hon. Geok6e S. Beyan, of ChAvieston,. 
District Judge, sat with him upon the Bench. 

After the roll of grand and petit jurors was called, the Hon. T). T. 
Corbiu, United States District Attorney, challenged the array upon the 
following grounds : 

,1. That said jurors were not designated and drawn in the manner pro- 
vided by law. 

2. That said jurors were drawn from the jury box by a small child, and 
not by the Clerk or Marshal, as required by law. 

. 3. That said j urors wove not drawn in the presence of the Clerk and 
Marshal, but were drawn in the presence of the Clerk only. 

In support of these objections the following affidavits were read : 

The affidavit of the United States Marshal, L. E. Johnson, asserted 
that he was in the city of Charleston on the second day of August, 1871, 
and in going to his office on that day he was informed that the grand and 
petit jurors for the next stated term of the Circuit Court had been just 
drawn, which greatly surprised him, as he had received no notice from 
the Clei'k, Daniel Horibeck, Esq., or any other person, of the intended ~ 
drawing of the jurors that day by the Clerk, and consequently was not 
pi^sent during any part of the time of the drawing of said jurors, as the 
law requires. 

The affidavit of the Chief Deputy Marshal, Edward P. Butts, was to the 
effect that, on the second day of August, while he was in his office in 
Charleston, he- was notified by the Clerk of the Court that he (the Clark) 
was about to drav/ the jurors for the next term of the Court, to be held 
in Columbia, and that he went into the room v/here Daniel Horibeck, Esq., 
the Clerk of the Court, had the jury bos, which he (Horibeck) unlocked 
and opened in his presence; that a small boy being called in, and instructed 
by the Clerk to draw from the jury box the ballots ; that the boy commenced 
drawing the ballots ; that he (Butts) was called av/ay after he had drawn 
a few, and left Mr. J. H. Shriner, a Bailiff of the Court, to take his place. 
Butts also deposed that the Marshal was not present during the time of 
the drawing. 

John H. Shriner deposed that he was a Bailiff of the Court at the time 



named, and was present, as asserted in the foregoing affidavits ; that his 
Honor Judge Bryan and the Clerk, Daniel Horlbeck, were present, and 
Deputy Marshal Butts was present a part of the time, and that the jury 
box was brought into the Court room, and opened in the presence of all 
the parties, a small colored boy being employed to draw the .ballots. 
The remainder of Mr. Shriner's affidavit corroborated those given above 
as tO' the absence of Marshal Johnson. 

In support of the challenge, Mr. Corbin said that he did not attempt 
to impute, either to the Clerk or any other person, any designed evasion 
or non-compliance with the law. He supposed that the fact that the jury 
was drawn by a small child was attributable to an old custom sanctioned 
previously by this State, but long since abolished. That custom, how- 
ever, had been continued by the Clerk of this Court, he having been, for 
a long time. Clerk of the State Court, while the custom obtained there. 
He added, that the order required the drawing to be done by the Clerk 
or Marshal, and nobody else, and in the presence of both the Clerk and 
Marshal. The Deputy was not mentioned in the order ; and where a 
special trust has been confided to draw a jur}"-, counsel presumed there 
could be no c^uestion that the trust must be discharged personally. He 
added that he was prepared to submit authorities, if the Court desired 
them. 

The Hon. Reverdy Johnson, of Baltimore, Md., who was present as 
counsel for the defense in the prosecutions, which it was supposed would 
be brought under the "Enforcement"* and the " Ku Klux'"*- Act of Con- 
gress, in opposing the challenge made by the District Attorney, said that 
he had asked Mr. Corbin what he designed to accomplish if he succeeded 
in getting the array dismissed, but had received no answez', except that 
the object was to get another jury. Mr. Johnson understood by a por- 
tion of the order of the Court, that the jury had to be selected from every 
part of the State, and not from the vicinage, and, therefore, if this jury 
was discharged, these trials must be post^Doned, and the whole proceeding 
of drawing a jury gone over again. ' 

Jlr. Johnson added, speaking for himself, that if the counsel for the 
Government entertained any tears that the judgments in these cases, 
passed on the verdicts of this jury, might be set aside for irregularity in 
drawing, he would waive all objections to the manner in which the jury 
was drawn. 

The discussion between the District Attorney and Mr. Johnson con- 
tinued until adjournment. 

3Ir. Corbin said he had taken this course on account of an important 
Maryland decision (Clair va. The State) Where an irregularity in draw- 

*Pxiuted in the Appendix. 



ing the jury was taken adviintage of, and great inconvenience had re- 
sulted. He also supported his position by a reference to 1 Surratt's 
Trials, 55, and added that he very much doubted whether it was in the 
power of the defense, if this jury should be held irregular, to say: "We 
waive every objection of this kind." That every person has the right to 
demand trial by a lawful jury, and each prisoner must personally waive 
the irregularity in such cases. 

On the second day of Coiu't, before the announcement of any decision, 
Mr. Corbin withdrew his challenge, and the juries were accepted. 

Upon a call of the panel, but eight grand jurors ^nd twenty-two petit 
jurors answered to their names. Hence it became necessary to supply 
the deficiency. The District Attorney accordingly presented an order 
requiring the panel to be completed from the body of the District. In 
opposition to this order, Mr. Jolmson said : 

The District Attorney proposes that there shall be a venire to summon 
thirteen grand jurors, or so many as may be necessary to fill up the 
panel. I rise merely for the purpose of saying, that by the Act of Con- 
gress, I think of 1824, but I am not sure that I am correct as to the date 
of the Act, the State of South Carolina was divided into two Districts, 
one called the Eastern, and one called the AVestern, and the offenses 
alleged to have been committed were all, I understand, committed in 
some of the Counties within the Western District. The sixth Article of 
the amendments to the Constitution expressly provides for the security 
of the citizen who may be indicted, that the jury which is to try him 
shall be summoned from' the^ District where the offense was alleged to 
have been committed. I cannot be mistaken as to the purport of that 
amendment. 

If, therefore, the Act of 1824 has not been repealed — I mean the Act 
of Congress — and there has been no change at all in that respect, in any 
legal way, then we feel that if the jury which is now to be summoned is 
taken from the Eastern District, it would be an error which I would not 
be at liberty to waive — could not waive, because the Constitution secures 
to a party the right to be presented by a grand jury taken from the 
vicinage of the District where the offense was committed, and to be tried 
by a petit jury selected from the same locality. 

The order which was passed by the Chief Justice and Associate Jus- 
tices before 3'our Honors yesterday evidently seems to contemplate but 
one District in the State ; but if, in fact, the division of the State into 
Districts can only be done by the legislative department of the Govern- 
ment, and if that department of the Government has divided South 
Carolina intotwo Districts, then it was not within the power of the Court, 
by any order of its own, to change the Act of Congress in that particu- 
lar, and, consequently, not in the power of the Court to deprive the ao- 



8 

cusetl of the right to have a jury selected from the locality where the 
offense is alleged to have been committed. 

I mention this now merely for the purpose of bringing it to the atten- 
tion of the Court, that, so far as I am concerned, we are satisfied v»ith 
any judgment v/hich the Court may pronounce; but, at the same time, 
tliink — if the Court should be of the opinion that the jury should be 
selected from the Eastern District — it would be my duty, should I repre- 
sent the parties in the Supreme Court of theTJuited States, to make that 
a ground of objection, should the judgment be adverse to my clients. 

The District Attorney replied : 

If the Court please, the State of South Carolina is divided into two 
Districts for the purpose of the District Court. Those Districts are 
called Eastern and Western. The Western District consists .of the 
Counties of Lancaster, Chester, York, Union, Spartanburg, Greenville, 
Pendleton, (since divided by the Legislature;, Abbeville, Edgefield, New- 
berry, Laurens and Fairfield. The remainder of the State constitutes 
the Eastern District. 

For the purposes of the Circuit Court, the, State of South Carolina, in 
toto, constitutes a District, and.these parties being on trial in the Circuit 
Court, it seems to me that the true and proper construction is that the 
jury should be drawn from the body of the District, which is the State. 

The constitutional point made is undoubtedly true ; but what consti- 
tutes the District? That is the only question. In 1 Brightly's Digest, 
p. 844, we find : "The Sixth Circuit Court of tjie United States for the 
District of South Carolina, (since changed to the Fourth,^ which is re- 
quired bylaw to be holden on the second Monday in December, an- 
nually, shall hereafter be holden on the fourth Monday in November, 
annually." 

That is, the time of holding the Court originally in this Slate has been 
changed to the present fourth Monday in November. The Court will 
notice that the State is spoken of as the District of South Carolina, and 
this Court is holden for that District. 

Now, in reference to the order which I presented to the Court, by an 
Act of the 3d of March, 1865, 2 Brightly, p. 107, it is provided: 
" Every grand jury empanneled before any District or Circuit Court of 
the United States to inquire into any i^resentment made of public 
ofi'eascs against the United States, committed or triable within the Dis- 
tvTct for which the Circuit is holden, shall consist of not less than six- 
teen, and not exceeding twenty-three persons. If, of the persons sum- 
moned, less than sixteen. attend, they shall be placed on the grand jury, 
and the Court shall order the Marsiial to summon, either immediately 
or for a day fixed, from the body of the District " — that is, the District 
for which the Court is holden; if the District Court, from that District; 



9 

and if the Circuit Court, from the District in wliicli the Circuit Court is 
holdeu ; " aud whenever a challenge to an individual grand juror is 
allowed, and there are not other jurors in attendance sufficient to com- 
plete the grand jury, the Court shall make a like order to the Marshal 
to summon a sufficient number of persons for that purpose. No indict- 
ment shall be found, nor shall any presentment be made, without the 
concurrence of at least twelve grand jurors." 

I think, may it please the Court, there can be no mistake about this 
matter. The position of the gentleman would be entirely correct if we 
were in the District Court, but v/hen we come to a Court that compre- 
hends the whole State in its jurisdiction, then the juries should be drawn 
from that district. 

Mr. Johnson again said : 

May it please your Honors, the constitutional provision was evidently in- 
tended for the security of the citizens, not for the benefit of the Government. 
Or, rather, it is especially intended for the security of the one, and has 
no reference to the security of the other. The common law rule, which, 
as your Honors know, is supposed to be very materially for the security 
of the subject, required the jury to be taken from the vicinage where- the 
oifense was perpetrated. The provision is to be construed liberally; 
nothing is more true than this principle. Now, the learned counsel al- 
leged, that if a criminal cause was instituted* in a District Court, and not 
in the Circuit Court of the United States, the jury would only be sum- 
moned from that District ; but he maintains that, inasmuch as the juris- 
diction of the Circuit Court extends over the whole State, there is no 
necessity at all for enforcing the provision of the Constitution — or, 
rather, for applyiug the provision of the Constitution to a case in that con- 
dition. It seems to me that the learned gentleman is incorrect. 

It is true that the Circuit Court has jurisdiction, as a Court, over the 
entire District of South Carolina ; but when we come to inquire how the 
jury is to be collected, we must then look to the act which makes two Dis- 
tricts in the State of South Carolina, and apply the constitutional pro- 
vision, that the jury shall be selected from that District in which the 
offense was committed. I submit, however, that I am perfectly willing, 
so far as' I am invividually concerned, to abide by any ruling, only re- 
peating that if the ruling should be adverse, I would deem it my duty to 
make an objection in the Supreme Court of the United States, should I 
represent any of these cases there. 

Judge Bond. Mr. Corbin, have you the Act of Congress that establishes 
the Fourth Judicial Circuit ? 

Mr. Gorbiu. The act of 1862, if the Court please, establishes the Cir- 
cuit : " Hereafter the District of Maryland, Delaware, Virginia and North 
Carolina, shall constitute the Fourth Circuit; the Districts of South 



10 

Carolina, Georgia, Alabamaj Mississippi and Florida, shall constitute the 
Fifth Circuit." 

If the Court please, in an Act still later, which puts South Carolina in 
the Fourth Circuit, it is spoken of as "the District of South Carolina." 

The Court will allow me to make one suggestion: If the construction 
of the distinguished counsel on the other side is correct, we shall be put 
in this very anomalous condition : If we are to look to the Districts con. 
stituted for the purpose of the District Courts, when we get a man from 
the Western District to try we must get a grand jury from that District 
to present a bill ; when we get a prisoner from the Eastern District we 
must get a grand jury into this Court from that District. Now, how, if 
the Court please, are we ever to get along with this business, if ^hat con. 
struction is to prevail? Is it to be presumed that the business is to be 
utterly blocked by such a construction ? And if we look into the Con- 
stitution, there is nothing said in the Section referred to in the amend- 
ment as to what a District shall be ; it simply says this : "In all criminal 
prosecutions the accused shall enjoy the rfght to a speedy and public 
trial by an impartial jury of the State and District wherein the crime 
shall have been committed '' — the State and District — now, if the State 
constitutes a District of itself, then State and District are synonymous — 
" which District shall have been previously ascertained by law." The 
State of South Carolina has JDeen fixed by law as a District, for the pur- 
poses of a Circuit Court, to be held at Columbia and at Charleston. 

At the conclusion of the argument, Judge Boiid announced as the 
opinion of the Court, that, so far as the Circuit Court is concerned, there 
is but one District in South Carolina. This, he said, was the Circuit Court 
for the District of South Carolina, and the Marshal was entitled to sum- 
mon a jury from the body of the District. 

Mr. Johnson reserved the point niade in his argument. 

At his own request, the Marshal was allowed forty-eight hours to com- 
plete the panel. 

When the Court again assembled the panel was full. 

Mr. B. F. Jackson was appointed foreman of the grand jury, which, 
besides the foreman, was composed of the following gentlemen : 

Richard Blackney, William Wingate, Dug Harris, R. A. DesYcrney, 
James B. Williams, F. M. Johnstone, Thomas J. Thackhara, Adam 
Branch, W. B. Mitchell, Henry Jones, Sandy Tucker, James C. Bonsall, 
James W. Heyward, James G. Graham, C. Baruum, Le Grand Single- 
ton, Lewis Prior, Jacob Thompson, H. Chambion and Frank J. Law- 
rence. 

In reference to the special oath they were about to take, Judge Bond 
addressed the grand jury as follows : 



11 

Gentlemen of the Jury : 

The Act of Congress of April 20, 1871, in tlie fifth Section, re- 
quires that every juror shall, before eutdring upon any such in- 
quiry, (investigating cases arising under this Act, hearing, or trial,) 
take and subscribe an oath, in open Court, that he has never, di- 
rectly or indirectly, counseled, advised or voluntarily aided any such 
combination or conspirary ; and each and every person who shall take 
this oath, and shall therein swear falsely, shall be guilty of perjury, 
and shall be subject to the pains and paxialties declared against that 
crime. 

The conspiracy to which that Section refers is in the 2d Section of the 
Act : 

" That if two or more persons, within any State or Territory of the 
United States, shall conspire together to overthrow, or to put down, or to 
destroy, by force, the Government of the United States, or to levy war 
against the United States, or to oppose, by force^ the authority of the 
Government of the United States ; or, by force, intimidation or threat, to 
prevent, hinder or delay the e-xecution of any law of the United States ; 
or, by force, to seize, take or possess any property of the United States, 
contrary to the authority thereof ; or, by force, intimidation or threat, to 
prevent any person from accepting or holding any office, or trust, or 
place of confidence, under the United States, or from discharging the 
duties thereof; or, by force, intimidation or threat, to induce any officer of 
the United States to leave any State, District or place where his duties 
as such officer might lawfully be performed, or to injure him in his per- 
son or property on account of his lawful discharge of the duties of his 
office, or to injure his person while engaged in the lawful discharge of 
his duties, or to injure his property so as to molest, hinder or impede him 
in the official discharge of his duty ; or, by force, intimidjUion or threat, 
to deter any party or witness, in any Court of the United States, from at- 
tending such Court, fully, freely and truthfully, or to injure any such 
party or witness in his personal property on account of his having to tes- 
tify ; or, by force, intimidation or threat, to influence the verdict, or pre- 
sentment, or indictment, of any juror or grand juror, in any Court of the 
United States, or to injure such juror, in his person or property, on ac- 
count of his being, or having been, such juror ; or shall conspire together, 
or go in disguise upon any public highway, or upon the premises of an- 
other, for the purpose, either directly or indirectly, of depriving any per- 
son, or any class of persons, of the equal protection of the laws, or of 
equal privileges or immunities under the |aws ; or, for the purpose of pre- 
venting or hindering the constituted authorities of any State from giving 
or securing to all persons within such State the protection of the laws ; or 
' shall conspire together, for the purpose of, in any manner, impeding, hin- 



12 

deling, obstructing or defeating the course of justice, in auy State or Ter- 
ritory, with intent to deny to any citizen of the United States the due and 
equal protection of the laws, or to injure any person, in his person or his- 
property, for lawfully enforcing the right of any person, or class of per- 
sons, to the equal protection of the laws ; or, by force, intimidation or 
threat, to prevent any citizen of the United States, lawfully entitled to 
vote, from, giving his support or advocacy, in a lawful manner, towards 
or in favor of the election of any lawfully qualified person as an elector 
of President or Vice-President of the United States, or as a member of 
the Congress of the United States, or to injure auy such citizen, in hii 
person or property, on account of such support or advocacy, each and 
every person so ofTcndiug shall be deemed guilty of a high crime." 

That is the conspiracy which the oath, which will now be put to you, 
means — that you have never engaged in, advised or counselled. Let 
them be sworn. 

The following is the. oath which was administered to the grand jurors, 
individually, and then subscribed by them : 

" We, the undersigned, do solemnly swear that we have never, di- 
rectly or inilireetly, counselled, advised or voluntarily aided any such 
combination or conspiracy, as set forth and described in an Act of Con- 
gress entitled 'An Act to enforce the provisions of the Fourteenth 
Amendment to the Constitution of the United States, and for other pur- 
poses,' approved April 20, A. D. 1871." 

When fully organized, and duly sworn, the grand jury was charged 
by Judge Bond, as follows : 

Gentlemen of the Grand Jury : 

Your duty has been sufficiently intiraatea to you by the words of the 
oath you have just taken. The Court will say to you, that in the inves- 
tigation of the cases that Vv'ill be brought before you, it is necessary you 
should exercise great patience. Llany of the witnesses are laboring 
under a great deal of unusual excitement; many of them are ignorant 
people, not accustomed to appearing in Courts, and it is absolutely neces- 
sary that you should bear with them patiently. 

You, yourselves, are not to admit the excitement outside to have any 
entrance into the grand jury room. You are to find your pi-eseutments 
upon the testimony of the witnesses that comes before you, and not upon 
outside statements. You will exercise your own best judgment, and 
assume the great responsibility the law casts upon you, and do your duty 
with impartiality and fairness, but v.ith firmness. 

You may now retire into your room and examine such witnesses as the 
United Slates may send before you. 

When the grand jury had retired, the oath taken by them was ex- 



13 

plained and administered to the petit jurors, and each of that panel 
signed it. 

The first indictment* found was against Allen Crosby, Sherod Childers, 
alias Bank Childers, Banks Kell, Evans Murphy, Hezekiah Porter, Syl- 
vanus Hemphill and William Montgomery. 

The defendants moved to quash, and, upon this indictment, and the 
objectionsf raised against it by the defense, the law questions involved 
in the prosecution of the Ku Klux conspiracy, under the Acts of Con- 
gress, were submitted to the Court. During the discussion of the pre- 
liminary questions already detailed, the District Attorney presented a 
commission from the Department of Justice, at Washington, associating 
with him, in the prosecution of causes at this terra, the Hon. D. H. 
Chamberlain, of Columbia, Attorney General of the State of South 
Carolina. About the same time, the Hon. Henry Stanbery, Ex-Attor- 
ney General of the United States, appeared in Court as the associate of 
Mr. Johnson, in the defense of parties indicted as Ku Klux conspirators. 
And these four gentlemen, Messrs. Corbin and Chamberlain on one side, 
and Messrs. Johnson and Stanbery on the other, from then until the 
Court adjourned, were the prominent actors in the proceedings which are 
chronicled iu the following pages. 

*A. copy of the indictment is printed in the Appendix 

-fO^ijections to the indictment are set forth in the r^rounds of motion to qnash, 
primed in the Appendix. 



Part I. 



THE CASE OF ALLEN CROSBY, SHEROD CHILDERS, AND 

OTHERS. 



Columbia, December 4, 187L 
In accordance with a previous notice, Mr. Stanbery, at the opening of 
the Court, proceeded to argue 

The Motion to Quash the Indictment 

in the case of the United States against Allen Crosby, Sherod Childers, 
a^i'as Bank Childers, Banks Kell, Evans Murphy, Hezekiah Porter, Syl- 
vauus Hemphill and William Montgomery. Mr. Stanbery's argument 
was as follows : 

ARGUMENT OF THE HON. HENRY STANBERY. 

May it please your Honors — Vv'^e have filed a motion in behalf of cer- 
tain of the defendants, that the iiidictment which was returned true bill 
to this Court, on the 1st of December, shall be quashed, and each and 
every count thereof, for reasons set forth in the motioa. I furnished, at 
the earliest practicable moment, to my friend the District Attorney, a 
copy of our motion, and the reasons upon which it was grounded, so that 
he might have as early an opportunity as possible to make preparation. 

The indictment, if the Court please, contains not less than eleven 
counts. All of these counts, except two, charge a conspiracy, and those 
two counts — the eighth and ninth — charge the commission of an act with- 
out any allegation of a prior conspiracy. All the offenses charged under 
these eleven counts relate to suffrage and an interference with its exercise, 
except two: the eighth, which charges an interference with rights secured 
by the Constitution to exemption from unreasonable searches and seizures 
of persons, papers and effects ; and the other charges an offense against 
the Act of Congress securing to each citizen equal protection under the 
law. 1 think this is about the scope of the various counts. 

I shall proceed in detail to state our reasons why this indictment, and 
each and every count thereof, cannot be sustained ; and I may say in the 
beginning, if the Court please, that my friend and myself associated in 



16 

tliis defense, intend to make no captious objections. We do not come 
here merely to contend for delay and postponement, or to contend over 
merely formal matters, which, v.-hether amended or not, would make no 
particular difference to our defense ; but to coutcud for matters which we 
deem essential to the defense, and which it is not our privilege, as counsel, 
to waive in behalf of our clients. 

Undoubtedly, at first blush, some of the objections which we shall state, 
may appear formal and capable of amendment; so they are, but it is the 
reason of that capacity of amendment, and that necessity of amendment, 
that uncertainty to advise us of the particular acts which we are called 
upon to defend against, that we are obliged to make those objections 
which may be remedied by another indictment, as we find we cannot pro- 
ceed properly with counts so general in their allegations. Then, -beyond 
that, if the Court please, there are contained in this motion, and arise un- 
der it, questions of the gravest import. 

To go on then, with the first count, meeting merely the formal parts of 
it. It charges that these defi^ndauts, together with divers other evil dis- 
posed persons, all of York County, in the State of South Carolina, and 
in this District, at York County, in the said District, and within the juris- 
diction of this Court, on the first day of February, 1871, unlawfully d,id 
conspire together, with intent to violate the first Section of the Act enti- 
tled " An Act to enforce the rights of citizens of the United States to vote 
in the several States of this Union, and for other purposes," approved 
May 31st, 1870, by unlawfully hindering, preventing, and restraining 
divers male citizens of the United States, of African descent, above the 
age of 21 years, qualified to vote at any election by the people, from ex- 
ercising the right and privilege of voting, and by other unlawful means, 
not allowing them to vote at an election b}^ the people, to be held on the 
third Wednesday of October, 1872, within the County, District and State 
aforesaid, contrary to the Act of Congress, iu such case made and pro- 
vided, against the peace and dignity of the United States. 

First of all, this count refers to a particular Section of a particular law, 
as that embraced within this conspiracy, and which it was intended by 
this conspiracy to violate. If the Court please, it is in that first Section 
we must find the corpus dilieti — the thing prohibited. It is an infraction 
of that Section we are now called upon to answer. Let me read it : " An 
Act to enforce the right of citizens of the United States to vote in the 
several States of this Union, and for other purposes," passed and approved 
May 31, 1870. This, then, is the Section which we are charged with 
violating: "Be it enacted by the Senate and Plouse of Representatives 
of the United States of America, in Congress assembled. That all citizens 
of the United States, who are or shall be otherwise qualified by law to 
vote at any election by the people, in any State, Territory, District, 



17 

County, City, Parish, Township, Scliool District, Municipality, or other 
territorial sub-division, shall be entitled and allowed to vote at all sucli 
elections without distinction of race, color or previous condition of servi- 
tude, any constitution, law, custom, usage, or regulation of any State or 
Territory, or by or under its authority, to the contrary notwithstanding." 
Your Honors are perhaps listening to find where is the penalty for vio. 
lating that Section? Where is the prohibition in that Section ? What 
does that Section do ? Simply declares a right — not a punishment for its 
violation. It would seem, if the Court please, that that is not enough. 
Where gentlemen undertake to designate a particular Section, of a par. 
ticulur law, which we, are charged with an alleged infraction of, they must 
be careful to steer very straight. It was unnecessary to do this, but hav- 
ing done it, and referred us to it as the Section which we are charged with 
violating, they must be careful to bring the offense strictly within it. The 
first objection, then, to this count is, that the Section to which they refer, 
aud wliich they claim we conspired to violate, declares no penalty ; it 
merely confers a right, but does not guard it with any penalty, or make 
it a crime to violate it. But Ave have other, objections which apply not 
only to this count but to others subsequent to it. Aud the first objection 
is that the names of the persons whose suffrage was interfered with, or in- 
tended to be interfered with, by this conspiracy, are not set out ; nor isrit 
alleged that the grand jury did not know their names, and were ignorant 
of them ; there is no excuse given. This, perhaps, is one of the most 
material things in this indictment. It is not for being conspirators against 
all the world ; it is for conspiring to violate the rights of certain individ- 
uals. What individuals? That is the first question. Who are we in- 
formed are the persons whose rights we have invaded ? Not a name 
given, nor any excuse for not giving a name. Is it possible that it is ne- 
cessary to argue that point? Would it be good to say we conspired to 
murder a man, without giving his name or without saying the name of 
the person was unknown to the jury? If the grand jury do not know 
the names of the persons, and, from necessity, could not name them, they 
would be excused, but for no other reason. It is not necessary to refer 
to elementary books to sustain that point. 

What next? The specific election at which they were not allowed to 
vote is not stated, nor does it appear whether it was an election for 
Representatives to the Congress of the United States, or for Electors of 
President or Vice President of the United States, or for a State officer, 
Governor, or any officer elected under the Constitution of the State. We 
are not told what was the character of this election, or when it was held, 
or what it was for ; we are entirely abroad as to that. No notice of what 
election was to be held, or for whom they were to be prevented from vot. 

ing. Now, if the Court please, the charge is that thev conspired to vic- 
2 



18 

late that first Section by unlawfully hindering, preventing and restrain- 
ing divers male citizens of the United Stittes, of African descent, above 
the age of 21 years, qualified to vote at any election by the people in said 
County, District and State, from exercising the right and privilege of 
voting, and, by other unlawl'ul means, not allowing them, the said male 
citizens, to vote at an election by the people, to be held on the third 
Wednesday of October, A. D. 1872. Now, if the Court please, we also 
object to this date, 1872. What does the gentleman mean by a date like 
that ? Of course a date stated in an indictment generally is not material, 
but it may become very material. Suppose you state as a day upon 
which a crime is committed, the 31st day of June. There is no such day 
in the calendar ; it is, therefore, an impossible date, and the indictment is 
bad. Suppose you state in your indictment a day which is after the in- 
dictment is found; that is a material averraent, and that makes the in- 
dictment bad. Or, suppose, as here, a future day, which has never yet 
happened ; as a matter of course, that would make the indictment bad. 
I really suppose the gentlemen made a mistake. Did you mean 1872, 
gentlemen ? 

Mr. Corbin. Exactly. 

Mr. Stanbery, (continuing). If you did not mean it, we will allow you 
to amend it. As to the omission of the names, and the omission of stating 
the means resorted to, any further than this, that, by unlawful means, 
threats, and intimidation, without stating their character, or auything of 
the kind, and without stating what election, whether for State, County, 
or munitnpal purposes — iu all these particulars, the question arises whether 
it is necessiiry, in an indictment for conspiracy — for such an offense as 
this — to set them out definitely. 

Now, if the Court please, in the first place, .what is the nature of the 
offense ? A conspiracy against what ? Against the exercise of the right 
to vote. That is the offense — the character of the offense. It is not 
against any right which a man is iu the exercise of all the time, as the 
right to enjoy his liberty, and to the protection of his person or property. 
It is not a right to vote all the time, but a right to vote at an election. 
Tlie right can never be exercised except in voting at an election. It, 
therefore, cannot be infringed or impaired, except by preventing the ex- 
ercise of that right at an election. 

It is not charged here, (and, if it were, it would be ridiculous,) that these 
defendants combined to deprive them of the right to vote generally. 
That they cannot do. It is impossible, for even the parties cannot divest 
themselves of that right by not voting for years. The right remains to 
vote when they choose, at the proper election, and they can only divest 
themselves of that right by removal, &c. But the right to takeaway his 
vote, to rob him of his vote, does not reside in any combination ; that 



19 

cau only be doue in the mode pointed out by law — as, for instance, 
upon conviction for an infamous offense. So that the infraction of this 
right, in point of law, cannot be a deprivation of the right so as to take 
from the party his right. It is not property or a chattel, that can be 
seized and converted to another's use, or seized and transported to an- 
other place, out of the reach of the owner. It is a personal right, intan- 
gible, that resides with himself, and which cannot be taken away, except 
in the legal mode. Therefore, a conspiracy to deprive a man of the 
right to vote, as a right, is a thing impossible, and the Court would be at 
a disadvantage to sit and hear a cause which involved such a wrong prin- 
ciple of law as that a party, being an African, and entitled to vote, his 
right to vote was divested by conspiracy. The power to vote is another 
thing ; but I am now speaking of the right. It is a right, then, if the 
Court please, that can only be interfered with in its exercise; it cannot, 
as I have said, be taken away ; but it may be interrupted in its exer- 
cise; interfered wiih in its exercise, or he may be prevent d from 
exercising it. Who? when? under what circumstances? The only 
time at which he can exercise the right of suffrage is at some 
election at which he is qualified to vote. Now, that being so, what 
must an indictment state? That this conspiracy, to prevent a man 
from voting, would interfere with the free exercise of his right to vote? 
Why, as a matter of course, it must charge that it had reference to 
an election ; to an intended exercise of that right to vote ; to an oppor- 
tunity to give that vote. Therefore^ the election must be stated, and it 
must appear to be such an one as is contemplated by law ; that is, an elec- 
tion for public officers; not an election for bank directors, or anything of 
that kind, but an election for political officers. It further must appear 
what sort of an election it is ; whether for Representatives in Congress, 
and, therefore, a Federal election, or whether it is an election for some 
office of the State — a State election. But we know nothing of this by 
this indictment. All omitted — entirely at large— what election they 
mean, or what officers were to be elected ; whether it was to be a special 
or general election, we are left entirely in the dark by the allegations in 
this Court. 

And this failure, if the Court please, to notify us of what election it is, 
gives rise to another very serious question. If they had alleged that it 
was an electi<^n for State officers, we should have another thing to say, 
and that is this, that a law of Congress which attempts to regulate the 
election of State officers is void and unconstitutional; that any interfer- 
ence with the domestic concerns of a State, the Constitution, throughout, 
forbids ; whereas, if it was stated to be an election for Federal officers, 
that objection would not lie. 

Again, if the Court please, it is nowhere alleged that they were quali- 



20 

fieri at this election, whatever it was, any further than it is stated "that 
they were male citizens of the United States, above the age of twenty-one 
years." Those three things are qualifications. " Qualified to vote at an 
election by the people of said County." Qualified to vote, how ? Quali- 
fied to vote, where? Qualified to vote, it says, "at any election by the 
people of said County, District and State, from exercising the right and 
privilege to vote." Qualified to vote ! Is that enough ? Is the stating 
of that legal conclusion enough? How do we know that the grand jury 
understood what was necessary to qualify a man ? What is their pre- 
sentment? They say these parties were qualified to vote, and they go on 
to state three qualifications, but they are not enough. They go on by 
saying that they were male persons. That is all very well. Females are 
not allowed to vote by Federal, or by your State law. Then they further 
proceed lo say that they were citizens of the United States. That is all 
very well; that is another qualification, but not all. Then they proceed, 
further, to state that they were of the age of twenty-one years and up- 
wards ; still -another special qualification. Now, the grand jury are on 
the road to state the qualifications, and to show the Court, not by a legal 
conclusion, but by fiicts, that they were qualified to vote; but they stop 
short. Every qualification is necessary ; they give us three — the sex of 
the party, the age of the party, the citizenship of the party. But what 
next? They fail to show us the residence — a material and necessary 
thing to go into the qualifications to vote at any election. 

And now, if the Court please, I understand, as to the qualifications of 
voters, that it was formerly two years' residence in the State; that' your 
qualifications, under the present Constitution, to vote at any election, 
are a residence of one year in the State, and sixty days, at least, in the 
place, precinct, or whatever it is, where the poll is, and the party seeks 
to vote. Am I right in that? 

Mr. Corbin. Yes, sir. 
, Mr. Stanbery, (continuing). Not one of these qualifications is stated. The 
grand jury seem to conclude that three qualifications — three terms of quali- 
fication being stated — make a qualified voter. But, they leave it altogether 
in the dark whether these parties, or any of them, resided one year in the 
State, and at least sixty days at the place of election, in the County where 
they had a right to vote. Are not these matters necessai-y ? Can you give 
any conclusion like that, which depends upon facts, to warrant a special 
conclusion, by stating three out of five special facts, and omitting the 
other two, and, therefore, claiming that they are qualified voters? Can 
you stop there and claim that the legal conclusion is right, although 
drawn upon imperfect premises? Why no, may it please your Plonors. 
At least I shall not feel myself called upon to argue that point further, 
until the gentleman insists that it is quite enough to give these three, and 



21 

not the otiier two, which are quite essential, and perhaps the most essen- 
tial of all. 

Now, the next count, if the Court please, is that these parties, together 
with divers evil-diL;posed persons, conspired together, with intent to in- 
jure, oppress, threaten and intimidate Amzi Rainey. Here the gentle- 
man seeins to have understood that it is necessary to name the party in- 
jured ; and, in that respect, this count is not liable to the objection that 
the parlies injured are not named. "A citizen of the United States, with 
intent to prevent and hinder his free exercise and enjoyment of a right 
and privilege guaranteed and secured to him by the Constitution of the 
United States, to wit : The right of suffrage, contrary to the Act of Con- 
gress in such case made and provided, and against the peace and dignity 
of the United States." 

Amzi Rainey is described as a citizen of the United States. That is all 
very well ; that is one qualification ; and his right and privilege is stated 
to be the right of suffrage secured to him by the Constitution of the 
United States. Now, pray, does the United States secure to a party the 
right to vote in any State? Does the United States fix the qualifications 
for such a voter? Wherein has the Constitution of the United States, or 
Congress, attempted to vest in citizens of States the right to vote and to 
fix the qualifications? The gentleman, perhaps, will be able to show me. 
NoiJe of my researches have enabled me to find any such authority in 
the Constitution or in any Act of Congress. Why is it necessary to 
argue here that the right to vote, and the qualifications for voting, are 
fixed by the several States, and they are very different in different States. 
In some, as to age, they are different ; I think, in one, as to sex ; one 
Territory, I think, in which the softer sex are allowed to vote; but the 
right to vote, the qualifications to vote for Representatives in Congress, 
or for Electors of President and Vice President, which are the only Fed- 
eral officers who can be voted for at all anywhere by the people ; the 
qualifications of such voters are not fixed by Congress, any further than"^ 
that they must have the same qualifications, as voters, as the laws of 
the particular State where they ai'e prescribe for voters to the most nu- 
merous bianch of the Legislature or General Assembly of that State. 

Where has Congress assumed to tell us who shall vote and who shall 
not vote? What shall be the qualifications? All that Congress has 
done is to say that, whei-e a white man can vote, a black man, who has 
equal qualifications, shall vote. Not that white men and black men 
shall have different qualifications, or that Congress will give black men 
qualifications which white men have not. Not at all. Simply, Congress 
says to every State : Wherever a white man, qualified by your laws to 
cast his vote, having the same qualifications, into the same box, the colored 
man shall be entitled to cast his. The statute speaks to all alike; there 



22 

sliall be no distinction. If you are citizens of the United States, you 
sliall be entitled to vote in every State of the Union, whether you are 
black or white, or any other color. Color, race, does not, shall not, em- 
barrass you in the exercise of that right ; but you who have never voted 
before, you who are excluded now by the laws of States, in consequence of 
servitude, in consequoice of color, all of these restrictions are taken 
away from you ; but we do not give you your qualifications by resi- 
dence and age, and other matters ; they are given to you by the laws of 
the State, and it is to the laws of the State now that you must look for 
your right to vote. When you come to the polls, your right to vote 
may be challenged, a,H a white man's may, because you have not re- 
sided a sufficient time within the limits of the voting place, or because 
you are not of sufficient age, or because you have not registered, perhaps. 
You must fulfill every State regulation that is fixed for white men, otherwise 
you cannot vote. And, therefore, Avhea you allege the right to vote, 
it must not be a right under the Constitution and laws of the United 
States, but under the laws of the particular State that fixed the quali- 
fications. Anizi Rainey, therefore, shows no right to vote, alleges no 
right to vote, except as secured to him by the Constitution and laws of 
the United Stages. He says, only, he is a citizen of the United States ; 
he does not even say he is twenty-one years of age ; he does not say 
that he resides anywhere in the State of South Carolina, and, more 
especially, in York County, where, I dare say, he had a right to vote. 
It is the enjoyment of a right aud privilege guaranteed and secured. 
to him by the Constitution of the United States, not secured to him by 
the Constitution also of the State. No allegation that he was qualified 
also, by the laws of the State, to enjoy that privilege. These two thiugs 
combined, with regard to colored men, would go to make the right to 
vote — first, that amendment which abolishes servitude and slavery ; 
and, next, that which says there shall be no distinction, in voting, of 
race, color or previous condition of servitude. So far the Congress 
helps him to the enjoyment of a right under a State, as a citizen of 
that State, provided he shows himself possessed of all the qualifications 
in that State that entitle him to vote. Here, not a single one is al- 
leged, nor is it alleged here that there was any election at which he 
was hindered or prevented from voting. How could he be prevented, 
or hindered, fiom voting, except at an election? And, if that is the 
thing prevented, why did not the gentleman tell us what election, that 
\\e might have notice of what we are to defend against? 

Again, here comes the objection that the unlawful means by which 
he was intimidated and prevented from voting are not set forth. Now, 
of course there must be such means, such threats, such intimidation, as 
would deter a man. An exercise of force; a threat of bodily injury ; 



23 

nothing of this kind is tilleged. We are left in the dark as to that. 
Where it was, or when it was, that we prevented him — what we agre.d 
to do, in order to prevent him — all of this is left out. So much for 
that count. 

Now, as to the third count — and this is a very important one. This, 
of course, brings up more distinctly the grave objections which I said 
arose in this case — those which no grand juiy can amend. These 
charges are as follows : That these defendaiits, &c., &c., on such a day, 
at York, &c., " unlawfully did conspire together, with intent to injure, 
oppress, threaten and intimidate Amzi Rainey, a citizen of the United 
Slates, with intent to prevent and to hinder his free exercise and enjoy- 
ment of a right and privilege, granted and secured to him by the Con- 
stitution and laws of the United States, to wit: the right of suffrage, con- 
trary," <&c.; "and the jurors," &c., "do further present that said Allen 
Crosby," &c., "in the act of committing the offense aforesaid," &c., "a 
dwelling house of the said Amzi Rainey," &c., "burglariously did break 
and enter, with intent to commit a felony, and that the said A. Crosby," 
&c., "in the said dwelling house being, in and uj)on the said Amzi Rai- 
ney, unlawfully, maliciously, and feloniously did make an assault ; and 
the said Allen Crosby," &c., " in and upon the head, shoulders and back 
of the said Amzi Rainey, then and there unlawfully, maliciously, and 
feloniously did strike, cut and wound, with intent to do unto the said 
Amzi Rainey some serious bodily harm, contrary to the form of the 
statute in such cases made and provided, and against the peace and dig- 
nity" — of what? — "of the State of South Carolina." This last, if the 
Court please, is a material avennent to all indictments. 

If the gentlemen wish it, I can certainly produce authority; but when 
I speak in this way to the Court, and state questions of law, I do not 
state them unless I am certain that I am supported by the authorities. 
In England, as well as in this country, this conclusion to an indictment is 
material, and can never be omitted. In England, it is in the older foi-ms, 
if your Honors recollect, "against the peace and dignity of the King," 
&c. ; but here it is against the !)eace and dignity of the United Stales, 
when it is an offense against the United States, and of the State of South 
Carolina, when it is an offense against the State of South Carolina ; and 
to omit it in any indictment vitiates that indictment. I will read to your 
Honors some authorities on that point. [The counsel hej-e cited from 
Chitty's Crim. Law, p. 24(5, authority in reference to the materiality of 
concluding indictments in the f(u-m stated.] 

To show that this old rule of the common law has been adopted 
in this country, I will read from 1 Brightly's Digest, page 20(5, Section 
157. I have endeavored to get the cases cited by Brightly, but have 



24 

been unable to oblaiu tbe books in Avhicb tbey are reported. [Counsel 
here quoted from the Section in Brightly referred to by him.] 

This third count, as I have said, in the first place, goes on to allege that 
the conspiracy was to oppress, threaten and intimidate Amzi Rainey, a 
citizen of the United States, Avith intent to prevent and hinder his free 
exercise and enjoyment of a right and privilege granted and secured to 
him by the Constitution and laws of the United States, as in the second 
count, and all my objections made to those other counts for want of cer- 
tainty, etc., iipply equally well to this. What I now want to call the at- 
tention of tlie Court to is an addendum, which brings us under the juris- 
diction of the State law^s. In the first place, your Honors will find that 
the burgbirious entry, charged here, into the dwelling house of Amzi 
Kainey, is not alleged as an overt a't of the conspiracy. Not at all. 
Nor as an act within the scope of the conspiracy. Not at all. It 
is alleged altogether as an independent act; simply that, whilst in the act 
of violating the rights of Sainay, with respect to the suffrage, they en- 
tered his house burglariously, in the night time, with the intent to commit 
another felony. The intent was not to carry out the purpose of the con- 
spiracy, but with intent to commit felony— and what felony? A bur- 
glar)% a totally different felony or crime from that charged in the forepart 
of the indictment; but with intent to commit a burglary and the further 
felony or misdemeanor, to wit : with intent to beat him, and to wound 
him. For what purpose? Simply with intent to beat and to wound — not 
to beat and to wound him so that he could not vote. It is alleged sim- 
ply as a distinct burglary, assault, battery, wounding and cutting. Now, 
first of all, let me refer to the Section stated in this indictment. In the 
first place, I will give the fifth Section, which is to hinder and intimidate 
a person from exercising the right of suffrage by threats — threats of de- 
priving such person of employment; and then the sixth Section, which 
is the conspiracy Section, to effect the same object. Then comes the 
seventh Section, on which the count is framed. [Counsel here read Sec- 
tion seven of the Enforcement Act.] 

Wei], then, as a matter of course, to punish a man for committing a 
burghiry or a murder or an assault and battery, under this Section, his 
offonsc must be set out ; the indictment must show it, and must have a 
proper conclusion. It must appear what felony, crime or misdemeanor 
has been committed. It won't do to say that, in the act of committing 
the previous felony or crime, he committed generally a felony, crime or 
misdemeanor. It might be a murder, and the man would have no notice 
of whom he murdered. It happened to be burglary here, and the gen- 
tleman has, for burglary, drawn a very good indictment. I take no ex- 
ception to it. He had a form for that, and he has followed the form very 
accurately. 



25 

Now, as I said, what authority have your Honors to talce cognizance of 
tliis offense ? Not burglary of the Post Office. Not a burghiry com- 
mitted iu a place where'the United States has exclusive jurisdiction, and 
defines the crime of burglary, and punishes its soldiers or other parties 
who commit burglary within that particular locality. Not burglary in a 
vessel on the high seas, or within any arm of the sea, or anywhere where 
the maritime jurisdiction extends. Not a biiglary connected in any 
sense with any function of the Government of the United States, or that 
it is allowed to protect ! Not 3.t all. It is simply an individual bur- 
glary — wounding, battery — committed iu a State; not in a Territory; not 
in a place beyond the jurisdiction of a State or Territory; but committed 
right within the State jurisdiction, in time of peace. Not iu the land or 
naval forces, but just as expressly a domestic burglary as any. 

Will it be contended that your Honors have any jurisdiction to try or 
punish a man for any such offense? For you must try him first, and find 
him guilty first, before you can apply the punishment. You may say 
that the punishment is only intended to be applied to the conspiracy ; 
but you must first (ouvict him of the burglary before you can apply the 
punishment. 

Now, suppose it were murder. When you try him for murder — when 
you are going to punish him for murder— you are going to hang him 
if he 1-5 guilty. How will you ascertain if he is guilty? 

If the Court please, have you any jurisdiction to try such an offense as 
that ? Now, I hold, iu the first place, that no mere common law offense 
is within tlie jurisdiction of any of the United States Courts, CLrcuit or 
District. There are no crimes mentioned in the Constitution, within the 
cognizance of the General Government, except tliose of treason, of coun- 
terfeiting the securities and coin of the United States, and of piracy. 
Congress had the power of enlarging the jurisdiction over crimes by the 
Constitution before the amendments were adopted. In the 8th Section 
of the legislative article is the provision that Congress may pass any law 
to carry out the provisions of the Constitution, or any part of ir. Con- 
gress could establish post offices, under its constitutional authority. It 
must protect its post offices and the carrying of the mails, and define 
crimes in regard to the protection and sancti-ty of the mail. So with re- 
gard to the coinage of money, Vviiich was a matter exclusively belonging 
to Congress. You will find a vast deal of legislation on the subject of 
forging. All those crimes are defined and punished. As to the public 
lauds, the offense of trespassing ou the public lands, as to navigation and 
offenses against vessels, piracy, murder ou board vessels, all sorts of 
crimes committed on board vessels, are provided against for the regula- 
tion of commerce and the pi'otectiou of commerce by the Federal power. 
As to districts entirely within the jurisdiction of the United States, the 



26 

jurisdiction of the particular land or soil being granted by the. State to 
Congress, there, also, in the matter of crime, whether it is against the 
United States, or navigation, commerce, coinage, or any individual crime, 
such as murder by A of B, both of them being within a fort or on Federal 
ground, of which exclusive jurisdiction is granted by the State, theie 
Congress legislates wiih regard to crimes. This does not in any sense 
interfere with regulations of the State Government. The State has sur- 
rendered its sovereignty over that particular locality. You cannot try a 
man for committing a murder in a dock yard by the State laws; there- 
fore, from necessity, the Federal Governtnent must punish crimes that 
happen on Federal grounds. I undertake to say that there is not a law 
of Congress, passed prior to this Act, so far as I have seen — and I have 
been a very long time at the bar, and had a great many occasions to look 
into this subject — and I don't know a single one where an offense against 
the State sovereignty, in a place over which the State has exclusive ju- 
risdiction, that does not in any way interfere with any power or duty 
devolved upon the Congress. I think you may look forever to find any 
other statute under which such a jurisdiction as is given in that seventh 
Section to try an individual, subject exclusively to the jurisdiction of the 
State, for a crime of a domestic nature in that State, " and against the 
peace and dignity of the State." 

This, then, is the .charge : Being a burglary in York County, South 
Carolina, in the house of an individual not an officer of the Government, 
upon the person of that individual, not an officer in the exercise of his 
duty. A burglary and entry into that house, alleged to be with the in- 
tent to commit a felony, and that felony specified to be an assault with 
intent to wound. That being the character of that charge, I repeat it, 
that there is not an element in it that would give your Honors jurisdic- 
tion, or call a jury here to pass ui)on it, or permit you to sentence a man 
to imprisonment for burglary, or, may be, murder, under any jurisdiction 
that you have under the Constitution of the United States. And your 
Honors will not forget that it is only under the Constitution that you act. 
And will the gentleman find me any authority in that Constitution which 
will authorize Congress to pass a law to punish crimes connuitted in this 
State against the laws and jjeace of the State? Your Honors will not 
forget that it is not allegtd that this act was in furtherance of the con- 
spiracy. Not at all. Nor was it a part of the conspiracy. Nor did if 
come within the scope of the conspiracy. But it was an indepeiidentact, 
with no intent to interfere with his vote, but an intent to burglariously 
enter his house to commit a felony — not that he might thereby not be 
able to go to the polls ; it simply ends there, with the beating and wound- 
ing. 

This is one of those great questions that arise and deserve the most 



^27 

niature consideration. Your Honors may hesitate — may, perhaps, prefer 
to refer this question to the Supreme Court of the United States. Un- 
doubtedly, it will go there. It may happen that, in the course of any 
aduiiuistration of this law, the puiut, perhaps, not being made, or the de- 
fendant being without counsel, the Court may run into the great error of 
trying a man for a domestic murder in a Court of the United States, and 
hang him. 

I, therefore, object to this count : First, because it concludes against the 
peace and dignity of South Carolina. Besides this objection, if the Court 
please, is the further objection that I have stated, that the charge is par- 
ticularly against the State, not against the United States, and that this 
Court has no jurisdiction to try that offense. Then the next objection, 
which I stated to the other counts, that no election is stated at which 
Raiuey was deprived, or was to be deprived, of voting; that the names 
are not set out, nor those qualifications, under State laws, which are ne- 
cessary to arrive at a legal conclusion that he was a voter. 

Now, the fourth count, if the Court please, is one that does not charge 
any conspiracy, but charges a direct act — that at York, on the 1st day 
of February, 1871, " unlawfully did attempt," not conspire, but "did 
attempt to conti'ol Amzi Rainey in exercising the right of suffrage, to 
whom the right of suffrage is guaranteed by the fifteenth amendment to 
the Constitution of the United States." It does not state that he is so 
much as a citizen of the United States, or that he is of the age of twenty- 
one years; and states no qualifications necessary to make him a voter in 
the County of York, except that he is twenty-one years of age, but no 
qualification as to residence in the State for one year, or a residence 
within the County for sixty days prior to voting. It does not even state 
generally that he was qualified to vote. All it states is that Amzi Rainey 
was controlled in exercising the right of suffrage, to whom the right of 
suffrage is secured, etc. 

Your Honors will recollect that the thirteenth amendment abolishes 
slavery, while the fourteenth declares that all persons born in this coun- 
try, or naturalized in this country, shalf be citizens of the United 
States, and secures to such persons their immunities and privileges as 
such citizens. This is the scope of the fourteenth, except its prohibitory 
clause, which it is not necessar}' to mention. 

Now, we come to the fifteenth, which is suffrage. Let us re id it. 
This is the one referred to in this count as the one that gave to Ra,iney 
the right of suffrage : 

" The right of citizens of the United States to vote shall not be denied 
, or abridged by the United States, or by any State." 

What does this mean ? Is it a grant ? a specification of the qualifi- 
cations necessary to vote ? Does it grant the right to vote absolutely, 



28 

witliout reference to citizenship? without reference to residence in any 
State? without reference to age or sex? Is that the way the gentleman 
construes this Section? that it gives a general grant to all persons, 
citizens of the United States, to vole? Not merely black and white, 
but, as well, male and female ? 

To read it as the gentleman would read it, it is a universal grant of 
the right to vote to all those persons. But it is not understood in that 
way. It does not say that the right of citizens of the United States to 
vote shall be universal, but the right shall not be denied or abridged by 
the United States, or any State. Why ? On account of race, color, or 
previous condition of servitude. 

Now, when we look for the construction of the law — and a very good 
way is to look at the mischief to be remedied by the law — we look at 
the previous condition of things ; see what the mischief was, and what 
the remedy is. We must not extend the remedy beyond the known mis- 
chief. 

Now, what was the mischief? Did the citizens of the United States 
generally require from Congress the grant to vote at all elections ? Had 
they not a capacity to vote without a grant from Congress ? Was the 
mischief, that white citizens could not vote ? that white male citizens, 
having proper qualifications, could not vote? Why, no! These amend- 
ments were intended to protect the colored race. 

The mischief was, that black men could not vote in all the States. 
That those ^ho had been slaves could not vote. That, as to colored men^ 
(although they might have all the qualifications), there was a discrimi- 
nation against them in many of the States. Some maintained that they 
could not acquire citizenship at all, as was held by the Supreme Court 
of the (Jnited States in the Dred Scott case. 

Now, it was intended to remedy all that. In the first place, slavery 
was abolished; then, next, they were made citizens of the United States. 

Finally, this amendment as to suffrage provides that there shall be no 
discrimination against any citizens of the United States because of their 
color or previous condition. Is not this the meaning of it ? Does it 
state a qualification, or prctcud to give a right ? It is provided that 
there shall be against' these men, made citizens of the United States, no 
right to discriminate on account of color or previous condition. Here a 
very grava question arises, whether this can be extended, by construction, 
to State elections, or is it to be confined to the mere matter of elections 
for Congress and ibr Electors of President and Vice President. Your 
Honors will observe that the Constitution of the United States makes no 
provision for ihe qualification of voters in the States. It confines itself 
to the members of Congress. It provides, with regard to Congressmen, 
certain qualifications : That they must be twenty-five years of age, and 



29 

must have resided for seven years within the United States ; and it pro- 
vides, for the Senate, that they must be at least thirty years of age, and 
resided at least nine years in the State from which they were elected. 
It makes no further provision for the person, as a candidate; and as to 
the qualification of those Avho are to vote, there is no qualification any 
where, not even in this amendment, other than that they must be persons 
qualified to vote for the largest branch of their own domestic Assembly 
or X^egislature. The qualifications of voters Congress leaves to the do- 
mestic policy of the State. In some of the States men of color, having 
the proper qualifications, have been allowed to vote, sometimes, with the 
property qualification. Congress did not interfere with that, any more 
than to say: You shall not discriminate ; if j'ou have a property qualifi- 
cation for black men not required for white men, it shall be there no 
longer ; all must be equal. Tlien, I repeat, may it please your Ploiiors, 
wherever they found the riglit to vote, upon the fifteenth amendment, 
they have looked in the wrong place ; for, if Amzi Kainey can vote, sim- 
ply because of the right secured to him by the fifteenth amendment, ac- 
cording to the construction given by the gentleman, he can vote whether 
he is twenty- one or not — whether he has resided in York County or not ; 
or whether ho is an inhabitant of this State or not. If he receives the 
grant from Congress, and his authority to vote, he must still fulfill the 
qualifications required by the State ; that is, every one which must be 
fulfilled by white men must be fulfilled by him. 

Now, again, if the Court please, a small matter, but I will state it. 
There is something necessary to make this indictment a little more cer- 
tain — "And did attempt to control Amzi Ilainey in exercising the right 
of suflTrage, to whom the right of suffrage is secured." Now, your Hon- 
ors, mark that! "Is secured and guaranteed by the Fifteenth Amend- 
ment!" Now, suppose that amendment gave the right to vote — we refer 
to the Constitution of the State still. So much for that. 

The fifth count : It, also, does not charge a conspiracy. It charges, 
first, an interference with his exercise of the right of suflSrage, just as the 
fourth count does, and then superadds the charge of burglary. 

The sixth count is very much like this, except that the allega:;o7i is, 
" unlawfully did conspire together, with intent to injure, oppress, threaten 
and intimidate Amzi Rainey, a citizen of the United States, because of 
his free exercise of a right and privilege granted and secured to him by 
the Constitution and laws of the United States, to wit: The right of suf- 
frage." When ? how prevented ? Before an election, or after an elec- 
tion ? before he voted, or after he voted ? Was it a conspiracy to pre- 
vent his voting, or a conspiracy to punish him because he voted ? It, 
perhaps, is intended to be the last, otherwise it would be identical with 
the former count. Cons^Dired to injure him because of his free exercise! 



30 

When ? where ? Where did he exercise this right ? For what exercise 
of that right did these men conspire together ? All left uncertain ! It 
is impossible to tell whether they intended to injure him prior to or after 
the exercise of this right. It is not because he exercised his right at a 
certain election, by voting at that election. It is not alleged that he 
voted at any election; or, for voting, or trying to vote, he was afterwards 
iuteifered with. I can make nothing out of it. 

The next is the seventh. That is precisely like the one I just reac], 
and subject to the same objections. And then, again, comes this bur- 
glary and felony, and other matters superadded, " against the peace and 
dignity of South Carolina." 

The eighth count is a new one : "That these defendants did conspire 
together, with intent to injure, oj^press, threaten and intimidate Amzi 
Kainey, a citizen of the United States, with intent to prevent and hinder 
his free exercise and ^ijoyment of a right and privilege granted and 
secured to him by the Ccmstitution of the United States, to wit : The 
right to be secure in his person, houses, papers and effects against un- 
reasona])le searches and seizures, contrary to the Act of Congress in 
such cases made and provided." That is the whole count. 

Tliere is no Act of Congress to secure a man against searches and 
seizures. It is declared to be a right in the Constitution; so is the right 
of personal liberty, and a thousand other rights, that are sacred rights, 
recDgnized by the Constitution of the United States. But I cannot go 
to a Federal tribunal to vindicate them. On the contrary, there are 
very few rights that I can go to a Federal tribunal to vindicate. I can- 
not go there to enforce any contract generally. It is contracts violated 
by a State law that come within that jurisdiction; or, when I am a citi- 
zen of one State, I can apply to Federal jurisdiction against a citizen of 
another State. So in certain other instances upon a claim, under Act of 
Congress, by grant or otherwise ; when the State overrules my claim I 
can go to the Federal Legislature and protect my title.' The Constitu- 
tion recognizes the right of personal security ; but to recover damages 
and puiiish the olfciuler for committing an assault and battery, can I come 
to this Court, because it is a right recognized by the Constitution ? Ko ; 
I go to a State tribunal competent to give me relief. It is not only t#i 
offense against me, but against the dignity of the Commonwealth that 
represents the 2Kirens patrice power, and guarantees and secures all the 
rights, immunities and privileges secured to the citizen of the United 
States by the Constitution of the United States. It could not be asked 
that the United States should do any more than declare these sacred 
rights; but, as to their enforcement, the Federal jurisdiction is limited, 
and, wherever it is exercised, there must be a reason for it, as of resi- 
dence. 



31 

The well established doctrine is, that the recognition of these rights in 
the Constitution is a restriction upon the Federal authority. 

We live in the States ; we are protected by the States. What sur- 
rounds me, when I am at home or here, but State law ? That is over me, 
above me, and around me. Great God ! have we forgotten altogether 
that we are citizens of States, and that we have States to protect us? I 
am a Union man, in every sense of the word. I have stood by it always, 
and shall stand up forever for the Union. I am against certain rights 
called "States Rights," but such rights as these belong properly to the 
States, and whoever invades them will find me from first to last with his 
antagonist. While I would not give to the States rights that have been 
surrendered to the United States, I will fight, to the last ditch, against 
Federal usurpation, either through the legislative, executive or judicial 
authority. These are persona], sacred immunities, that attach to us as 
individuals, and are protected by the domestic law. I hope to God never 
to live in a country in which the laws of the country, within its pr^iper ju- 
risdiction, do not protect nic in the exercise of such rights and privi- 
leges. 

What is the next count? "Unlawfully conspiring to deprive Am zi 
Kairiey of the equal protection of the law." The equal protection of the 
law ! Why, are not all entitled here to the equal protection of the law ? 
Citizens of South Carolina, am I not just as equally protected in South 
Carolina as in my own State ? Can any man in South Carolina assault 
me because I am not a citizen of South Carolina? The laws of South 
Carolina protect me ; are bound to protect me. These natural rights, 
these sacred rights, they belong to every individual and every person. 
These are the rights that a State is competent to protect, if a State is com- 
petent to do anything. Depriving him of the equal protection of the 
law — how can that be done ? What way? The gentleman does not tell 
us. Again, it is not alleged what laws there are that he is prevented 
from having the enjoyment of — State laws or Federal. The gentleman 
has just taken the language of the statute, and attempted to make an in- 
dictment by using that language. 

If a statute provides that a man shall be imprisoned ten years for com- 
mitting burglary, it wouldn't do to say in the indictment " that he com- 
mitted J)urglary." Ail the c.rcunistances are not stated in the statute. 
But they must be in the indictment. 

I have seen statutes so full that merely copying the language, with a 
few verbal alterations, would make a good indictment ; but huch things 
are rare. 

The tenth count is identical with the ninth, except that tlie purpose is 
, to deprive him of equal privileges and iramuuities under the law. The 



32 

other i? ''equal protection," that is, " equal privileges aud immuuities," 
which I have discussed ah-eady. 

Now comes the eleventh, which is as follows, and I am glad to say it is 
the last one. "Aud the jurors aforesaid," etc, "present that Allen 
Crosby," &c., " unlawfully did conspire together to injure Amzi Rainey, a 
citizen of the United States, lawfully entitled to vote, in his person, on 
account of giving his support, in a lawful manner, in favor of the elec- 
tion of A. S. Wallace, a lawfully qualified person, as a member of the 
Congress of the United States.'' 

Now, this is intended to embrace a case of a conspiracy to injure the 
party after he has given his vote, under this clause of the statute, " in 
favor of the election of A. S. Wallace, a lawfully qualified person." 
What ! Wallace a lawfully qualified person as a member of Congress of 
the United States I Why, it is necessary, under the United States laws, 
that Mr. AVallace should be twenty-five years of age ; that he should 
have resided in this State seven years. All these material allegations 
are omitted, and, instead, there is only a legal conclusion that Wallace 
was lawfully qualified. V. 

At the conclusion of Mr. Staubery's argument the Court adjourned 
until the 5th, at 10 o'clock A. M. 



Columbia, December 5, 1871. 

Mr. Stanbery called attention to additional authorities, in a short sup- 
plementary argument, as follows : 

I want to bring to the notice of your Honors one or two authorities, 
and 1 will make a further statement as to one point. I read now from 
Wharton's American Criminal Law, vol. 3, p. 2*290 : " If any two or 
more persons shall conspire or agree falsely and maliciously to charge or 
indict any other person, or cause or procure him to be charged or indicted 
in any Court of criminal jurisdiction, the persons so ofii^udiug shall be 
guilty of a misdemeanor," etc. Now, in note B: "Under this statute 
the particular means intended to be used should be alleged, in order that 
the Court may see whether they are in themselves criminal, or amount to 
a cheat, or obtaining goods by fake pretenses. So an indictment for a 
cheat must set forth the means by which the cheat was effected." [Au- 
thorities given.] " It would, therefore, seem to follow, that when the charge 
is a conspiracy to commit those crimes, the indictnieut should be equally 
explicit, and such was the decision of the Court for the correction of errors 
iu Lambert vs. the People, 9 Cowen, 578. In that case the decision was 
made by a bare majority, but the dissenting opiniqps were based upon the 



33 

assumption thut a conspiracy to defraud any one of his property, by any 
means, constituted a crime. But the Itevised Statutes have put that 
question at rest by defining the crime in accordance witli the decision of 
the majority of the Court on that case, and thus restricting the offense to 
nnicii narrower limits. But the dissenting members of the Court assumed 
the law to restrict it." Tliat is, as to stating the manner, you must state 
such tlireats as would amount to a prevention ; such a threat as would 
prevent a reasonable man from exercising the suffrage. 

Now, from page 2349 : ." It is important to set forth the names of the 
parties injured, unless a good reason be given for their non-specification." 
Thus, Tindal, C. J., said : " Mr. Pashlcy, for the plaintiffs in error, argued 
that the indictment was bad, because it contained a defective sta emeut of 
the charge of conspiracy, and we agree that it is defective. The charge 
is that the defendants below couspii'cd to cheat and defraud divers sub- 
jects, being tradesmen, of their goods." Here it charges divers persons. 
"And the objection is that these persons should have been designated by 
their christian and surnames, or an excuse given, such as that their names 
are to the jurors unknown, because this allegation imports that the in- 
tention of the conspiracy was to cheat certain indefinite individuals; as 
for instance, those v/hom they should afterwards deal with, or afterwards 
fix upon. It ought to have been described in appropriate terms, shovv'inrf 
that the objects of the conspiracy were, at the time of making it, unascer- 
tained, as was in fact done in the case of Rex de Berenger and the Queen 
vs. Peck." 

So much for the threats. Now, upon one point. We were arguing to 
your Honors the scope of judicial power under the Constitution of the 
United States within a State, and gave various grounds under which 
that judicial power might be exercised in reference to the competency of 
this Court to try this question of burglary. I failed to state another 
source of Federal i:)ower in the judiciary which might be introduced into 
a State, and it is applicable in this case. It might happen that, in a part 
of this State — for instance, in York County, and, perhaps, in certain other 
Counties — that there are combinations so powerful as to prevent the local 
Courts from putting down this domestic violence, so combined, and with 
such means of interfering with the local authorities, that it is impossible 
for the State authorities and the local authority to protect its citizens 
from this domestic violence. Under those circumstances, who inter- 
venes? What intervenes? The Federal judicial power? Not at all. 
That is not a case for the Federal judiciary to try. In consequence of 
this combination in this State, the General Government intervenes v/ith 
another power. What is that ? The Executive power, by force, to do 
what? To try those parties? Not at all ! To bring them into the Cir- 
cuit Court, or the District Court ? Not at all ! It intervenes, at the re- 
3 



quest of the Executive of the State, to put down this force, so that the 
State laws may go into effect. That is, in other words, the soldier must 
follow the Marshal or Sheriff, to see that the State laws are executed. 
There is no warrant or authority for the Federal judiciary to intervene to 
correct the evil. Not at all ! 

ARGUMENT OF THE PION. D. H. CHAMBERLAIN. 

May it please your Honors: 

The first exception which has been taken and argued to the present 
indictment is : That a conspiracy has been charged to violate the first 
Section of the Act entitled " Au Act to enforce the rights of citizens of 
the United States to vote in the several States of the Union, and for other 
purposes," approved March 31, 1870, and that, by reference to the Sec- 
tion — the first Section of that Act— it is found that, wliile a right is de- 
clared, the infringement of that right is not prohibited, and that, there- 
fore, this first count is defective, because it is simply for a violation 
of the first Section, which contains no prohibition or penalty for its 
violation. 

Now, if the Court please, it is not from any disrespect to the course 
which counsel has taken and seriously argued, but it is impossible to con- 
ceive how such an objection can seriously be taken to this indictment. 
I understand the exception to rest upon this ground : That, in order to 
enable us to charge the violation of the first Section of this Act, the first 
Section itself must contain a penalty lor its violation ; must, within 
itself, carry a prohibition for the right which it asserts, and of the duty 
which it defines. 

Now, if the Court please, this is all one Act. A division of an Act 
into Sections does not destroy the entirety of the whole Act, and this Act 
wouhi have the same force and eflTect if it were not divided at all 
into Sections. Who can dispute this ? Now, we do not deny that, in 
reading the first Section, we find no prohibition, no notice of the penalty. 
The Section is as follows : 

" Tliat all citizens of the United States, who are, or shall be, otherwise 
qualified by law to vote at any election by the people, in any State, Terri- 
tory, District, County, city. Parish, township, school district, municipality, 
or other territorial sub-division, shall be entitled and allowed to vote at 
all such elections, without distinction of race, color or previous condition 
of servitude, any Constitution, law, custom, usage or regulation of any 
State or Territory, or by or under its authority, to the contrary notwith- 
standing." 

So much for the first Section, which is simply an arbitrary, au artifi- 



35 

icial division of an entire Act. Now, further, in tlie Act and tlie Section 
■which gives the right to make this indictment. 

[Counsel here read Section 7, prescribing penalties, &c., for violations 
of Section 1.] 

Now, if your Honors please, what can be clearer than that, in this 
Act, we have a right, by the Section just -read, which does affix a penalty, 
which dees prescribe a violation of the first Sectioa, We have a right 
lo use that Section, in connection v.ith the first, to charge this conspiracy 
to violate this Act, to wit': the provisions contained in the first Section 
of the Act, that all persons otherwise qualified to vote in the State, or in 
any election, shall be allowed and entitled to vote, without distinction of 
race, or color, or );.revious condition of servitude. 

Is it necessary, your Honors, that every Section of an Act that asserts 
a right or prescribes and defines a duty shall, within the limits, the arti- 
'ficial limits, of that very Section, denounce a penalty and provide a viola- 
tion of those provisions ? In othing is more common, if your Honors please, 
than for the former part of Acts to be occupied with asserting rights and 
defining duties, and, subsequently, but within the limits of the same Act, 
•which is always to be treated as a whole, we find penalties prescribed ; 
we find what constitutes a violation of those rights, or an infringemeiit of 
thoS5 duties, set forth. 

Undt'T that Act all the pleader has to do is to set forth the ofiense 
which is charged urder the authority of any of the Sections of the en- 
tire Act. 

Now, let us examine this again, x\;-sumiag that ihe sixth Section de- 
■clares that if two or more persons shall conspire to violate any provision 
of this Act, is not the first Section of this Act a provision of it? does if 
not provide that "all persons otherwise qualified to vote shall be entitled 
■to vote without distinction of race, color, or previous condition ?" Cer- 
tainly that -*s a provision of this Act. And does not the sixth Section of 
the same Act give us the right to indict two or more persons for a con- 
spiracy to violate the first Section ? We say, therefore, we are not aware, 
if you':' Honovs pletise, of any custom, or any rule --i'law, on the mo e of 
drawing Acts or indictments, that would point out that because a partic- 
iilar Section of an Act did not contain withiu it an announcement of 
a peuaUy, that, therefore, we could not, under a subsequent Sectio»i of that 
Act, indict for a violation of the provisions of the first Section re- 
ferred to. 

The first Section and the sixth are one in purpose — to enforce the right 
of citizens to vote. The first Section defines the. right, the sixth Section 
describes the mode of punishment for a violation of that riglit. Now, if 
there be any authorities which would prevent us from indicting for a 
violation of the first Section of that Act, because tliat Section, instead of 



S6 « 

tri3 sixth, does not prescribs the penalty, our researchas hareiioi: cuabre<5 
lis to discover them. 

The second exception tha'. has been tals.ei^'i to our first count is, that if- 
dosri not set forth tlie names of the persons who are to be injured by thi.v 
consph'acy ; of the persons who were the objects cvf the conspiracy. Our 
answer t'> that i^, th.at it is sim'^^ly' not necessary that the names of the 
persons to be injured shall- be set forth in an indictJuent for a conspiracy. 
We take this position upon authority ; 3 Greenleaf on Evidence, Sec, 
89, under the head " Conspiracy." The general rule of the conamon la\r 
is, that it is a criminal and indictable ofi^nse for two or more to confed- 
erate or combine together, by concerted means, to do that which is un- 
lawful or criminal, to the- injury of the public, or portions or classes of 
the community, or even to the rights of ifu individual." That is,, the ob- 
jects of the conspiracy may be either the public generally or a particu- 
lar class, 0-1' a particular portion of the public, or it may be individuals. 

And, ar.iia, in 2 Rassell on Crim3s, p. 679 : " In a receat case it was 
held to be an indictable oifense to conspire on a particular day, by false 
rumors, to raise the prices of the Government public funds, with ixilent to 
injure the subjects who should purchase on that day, and that the in- 
dictment was well enough- drawn, without s^pecifying the particular per- 
sons who purchased- as the persons intended to be i)>jured ; and that the 
public funds of this Kingdom might mean either British or Irish funds,, 
which, since the union, were each a pait of the United Kingdom." After 
the argument, upon the motion in arrest of judgment, Lord Ellenborough, 
C. J., said : 

" I am perfectly clear that there is not any gxound- for the motion in 
arrest of judgment. A public mischief is stated as the object of this- 
conspiracy. The conspiracy is, by false rumors, to raise the price of the 
pu'biic funds and securities, and that the evime lies in the act of con- 
sipiracy and combination to effect that purpose, and would have been com- 
pletOy although it had not been pursued to its consequences, or the parties 
would not h^ ve been able to carry it into effect. The purpose itself is- 
mischievous ; it strikes at the price of a vendible comm-t)dity in- the mar- 
ket, and if it gives a fictitious price, by means of false rumors,, it is a 
fraud levelled against all the public, for it is against a.ll such as may pos- 
sibly have anything to do with the funds on any particular day," 

In the same case, Bailey, Justice, said : " It is not necessary, to consti- 
tute this an offense, that it should be prejudicial to the public in its aggre- 
gate capacity, or to all the King's subjects ;. but it is enough if it l>e pre- 
)udicialto a class of the subjects. Here, then, is a conspiracy to eifect an^ 
illegal end, and not only so, but to effect it by illegal means, because to- 
raise the funds by ftilse rumors is by illegal means." 

And by D-arapier, Justice: "I own I cannot arise a doubt but that this 



37 

is a co-iTiprete crime of conspiracy, aceordiug to any definition of it. The 
■means are wroa^i' ; they were false riniaor;?. Tiie oUiect was wroii;; ; it 
was to give a false value .to a eommodity in a public raavket, which was 
injurious to those wlio had to purchase." 

In 2 Mass., Gomraouwealth against Judd, p. 329, the defen-fants were 
indicted "fftr that they did cons})ire t<iigethei' to mix, compound and mau- 
iifacture n certain base material, iu form and color, an<l with the re- 
semblance of good and genuine -indigo, of the best quality of foi'eiga 
growth and maiiufactare, with the intent that the same should be sold at 
'public auction, as good and genuine indigo, of the best quality.'" The 
.opinien of the Court was delivered 'by Parsons, Chief Justice: " The de- 
fendants have been indicted for conspiring together to manufacture of 
certain materials mentioned in the indicLment, of which one was good 
audigo of foreign growth. * * * The indietmen: furtlier 
•charges 'that, in pursuance of this e*ns pi racy, they, in fact, manufactured 
this base compo.-fition, a-iid that, }n farther pursuance of this confederacy, 
they exposed this base composition for sale at jublic auction, and, in fact., 
Gold it for genuine indigo, of the best quality and of foreign, growth 
Upon this indictment the defendants have been tried, and the jury have 
returned their verdict, tha? the defendants were guilty of a conspiracy to 
enake base aad spurious indigo, ■^fith a fraudulent intent to stll ihe same 
,as good and genuine indigo, but that tli«y do not iind that tlie same v/as 
fiold at.auct.u)n in the manner set forth in,<he indictment." 

A motion was made in ai-rest of judgment, and, it is upon that motioa 
that this decision is rendered, holdiiig that this indictment is gt)6d where 
<no persons are mentioned, but simply that they c^^nspired to compound 
and manufacture a ?puri«u3 article of .merchandise, and to expose it to 
public auction, an injury to anybody who might purchase. 

How far, if your Honors please, does that come short of requiring us, 
in this iadictmejit, to indicate the names of particular individuals who 
are to be injured by ou,r conspiracy? It dees not require us even to 
■aame ciaases further than such as isay be described very loosely and 
vaguely as those who might chance or happen to be 'sidders at a public 
•«utcry, AFhy should it not have been held in this conspiracy, to manu- 
facture this base article, that the indictmeRt should set forth that it was 
•with intent to defraud A, B and C, and through the alphabet? Simply, 
cf your Honors please, becauce it was a conspiracy, the moment the com- 
^binatJon or agreement was entered into, without reference to its being 
carried issto effect, and without reference to the ijidividuals, or class of 
individuals, who might be injuTed by it 

There is another case, if your -Honorsspleaee, ia 7th Metealf, which re- 
fers to this leading case, of Commonwealtn against Jndd, which I have 
gust xead. It is the case of Commonwealth an'ainst Harley, .7th Metcal£ 



p. 506. The head note is as follows : " An averment m an indicfraeafe 
for a conspiracy that the defendants conspired to defraud A, is not sud- 
ported by proof that they conspired to defraud the public generiiJly, or 
an individual whom they might meet and be able to defraud." 

And the Court, in their opinion, say : " In thfr present case, it ^as un- 
doubtedly competent to have charged a conspiracy to cheat and defraud) 
the pubKc generally, as was held in Commonwealth vs. Judd^ 2 Mass.^ 
329. But, giving the greatest latitude to that decision, it would only 
establish the proposition that this indictment would have been v/ell main- 
tained had it alleged the conspiracy to have been entered into, with the 
intention to defraud the public generally. Alleging the offense in that 
form, obviates entirely the objection of variance which arrises in the pres- 
ent case. But here the alfegatioii; is not of an intention to. defraud the 
public generally, but it is specifically charged as a conspiracy to defraud- 
Stephen W. ]\[arsh ; and the question is, therefore, whether the evi- 
dence of a conspiracy by defendants to cheat the public generally or 
any person who might fall in their way, and thus be made to suffer 
from the conspiracy, will support an indictment, charging, as this 
does, the special and particular pur^ ose of the conspiracy to defraud. 
Stephen W. Marsh. 

"Looking at the question ivi tliis light, and applying to the case the- 
&miliar rules of the common law, we cannot avoid coming to the result 
that there was a variance between the allegations and the proof that, 
was fatal to the maintaining of the indictment. As already remarked,, 
there wis no necessity of making any allegation-in the indictment of an 
intent to defraud any particular individual ; and especially since the 
enactment of tli* Rev. Sts.,. c. 127, s. 14. The Government having 
elected, as set forth in the indictment, a special intent to defraud Stephen 
W. Marsh,, as the object of thsy conspiracy on the part of both the con- 
spiratoi-s, Phlenia Harvey and Robert Harvey. That allegation was a 
material one, and the Government was bound to establish it by proof." 

The doctrine of this case is simply this, that where you do charge a 
conspiracy to injure or defraud an individual,. and, in supj^ort of that 
charge, you prove that it was a combination or conspiracy to injure or 
defraud divers individuals in tlie community, or the public generally,., 
your proof and your allegations do not coiTCspond ; but it is an em- 
phatic decision that it is not necessary, in charging a ccnspini^y, to 
name any particular individuals as the pcrsonR- to be injured. But you 
may charge, first, the public generally; you may charge, second, any- 
class or described portion, of the community ; or, tliird!^}', you may 
charge individuals; and, if you. charge individuals, you must name 
them; or, if you charge an individual, namijig him, yoa must coanecS. 
your proof with that individuaL 



39 4 

And now, how is our indictment drawn ? It charges an intent to 
violate the first Section of tlie Act, by unlawfully hindering and restrain- 
ing divers male citizens of the United States of African descent. How, 
and why? Are we bound here, in order to make out this charge of con- 
spiracy, to describe fully, and accurately, and completely, this crime of 
conspiracy? Are we required to name particular individuals who are to 
be injured by this conspiracy ? 

The third objection which has been ui'ged against the first count of our 
indictment is, that it does not set forth the means by which this unlawful 
hindering, &c., was to be effected. Our answer to that is, that it was not 
necessary in charging a conspiracy. I refer to Greenleaf on Evidence, 
Section 95, for a general statement of this principle: "Where the conspi- 
racy was to do an act, in itself unlawful, the means intended to be em- 
ployed to effect the object are not usually stated in the indictment. Xor 
is it necessary, in .such case, to state them. 

Also, in 2 Russell on Crimes, p. 69 : " Where the act is, in itself, illegtil, 
it is not necessary to state the means by which the conspiracy was effected ; 
thus, where the indictment charged that the defendants conspired to- 
gether, by indirect means, to prevent one H. B. from exercising the trade 
of a tailor, and it was contended that it should have stated the fact on 
which the conspiracy was founded, and the means used for the purpose, 
Lord Mansfield, C. J., said : 

"'The conspiracy is stated, and its object. It is not necessary that the 
means should be stated.' Buller, J., said: 'If there be any objection, the 
indictment states too much. It would have been good, certainly, if it 
had not added by indirect means, and that will not make it bad. In a 
late case, where the indictment charged that the defendants, by divers 
false pretences, and subtle means and devices, did conspire to obtain from 
A. divers large sums of money, and to cheat and defraud him thereof, it 
^vas holden that the gist of the offense was conspiracy; it was quite suf- 
ficient to state the fact and its objects, and not necessary to set out the 
specific pretences.' " 

Mr. Stanbery, (interrupting). Allow me to say you do not apprehend 
the point I make with regard to that. This statute requires not only the 
conspiracy to be stated, but the means of carrying it out; and our objec- 
tion was, that you did not show what means were used. That is the point 
>ve make. 

Mr. Chamberlain, (resuming). This first count, if your Honors please, 
is under the sixth Section of the Act, and it charges a conspiracy to vio- 
late the provisions of the first Section ; and the statute says: 

" That if two or more persons shall band or conspire together, or go in 
disguise upon the public highway, or upon the premises of another, with 
intent to violate any provision of this Act, or to injure, oppress, threaten, 



40 

or intimidate any citizen, with intent to prevent or hinder his free exercise 
and enjoyment of any right or privilege granted or secured to him by 
the Constitution or laws of the United States, or because of his having 
exercised the same, such persons shall be held guilty of felony, and, on 
conviction thereof, shall be fined or imprisoned, or both, at the discretion 
of the Court — the fine not to exceed five thousand dollars, and the im- 
prisonment not to exceed ten years — and shall, moreover, be thereafter 
inelioible to, and disabled from holding any office or place of honor, 
profit or trust, created by the Constitution and laws of the United 
States." 

Where does this Act require us to set forth the means of conspiring to 
violate the provisions of the first Section of the Act ? By what means? 
None at all. None required of us to be stated. Simply a conspiracy, 
with intent to violate the provisions of the first Section, or any provision 
of this Act — "who shall, upon conviction, be fined or imprisoned." 

Now, if your Honore please, that is the mistake wdiich our friends 
have made. This is a statutory offense, and the statute does not require 
us to set forth the means by which it was intended to effect this conspi- 
racy for the violation of a provision of the Act, and, therefore, w^hat I 
have already said of the necessity, generally, of stating the means, is 
applicable in this case, and the statute requires nothing of us that the 
common lav/ would not require. 

Now, if your Honors please, I think that the next objection which the 
distinguished counsel urged to this same count, -was that a specific elec- 
tion was not stated— whether State, County, or Federal. Your Honors 
have already seen that this count is simply for a conspiracy to violate the 
provisions of the first Section of this Act. And that Section asserts the 
right of citizens of the United States, who are otherwise qualified by 
law to vote at any election by the people in any State, Territory, Dis- 
trict, County, &c., to vote, W'ithout distinction of race, color or previous 
condition. But now, if your Honors please, is it necessary for us to 
state that this conspiracy had reference to any particular election ? Wo 
are entitled to indict, under this Act, anybody who conspires to violate 
any provision of this Act, Here is a provision of this Act to give Amzi 
Rainey the right to vote always, at any and every election, and the con- 
spiracy Avas to deprive him of that right, to rob him of it generally — to 
put him in such terror that he would be as if he had not that right. 

How shall it be necessary for us to say that this general conspiracy to 
rob Amzi Rainey of his right to vote must be intended to apply to some 
particular election, in preference to any other? This, if your Honors 
please, is a statutory offense. This indictment is drawn under the statute 
Tvhich extends over that offense. The offense is the general one of con- 
spiring to deprive an individual of the right to vote. When ? At the 



41 

next election, or the election after that, or the third or fourth election in 
the future ? Not at all. But it infringes his right to vote, in the lan- 
guage of the first Section, at any election by the people in any State, 
Territory, District or County, town, municipality, or other territorial sub- 
division. 

But then, if your Honors please, nothing can be more important, in 
determining whether that is essential or not, than to remember the nature 
of the conspiracy. I think nobody will question the accuracy of the 
definition which I am about to give, or rather repeat, of a conspirr.cy — 
that it is a combination or agreement of two or more persons, by some 
concerted means, to do an unlawful or criminal act, or to do a lawful act 
by criminal or unlawful means. Now, that is all there is in a conspiracy, 
and that is all that is essential to this first count. Did they conspire, by 
concerted means, to do an unlawful act ? 

If we have set forth that fully and completely, what more we have set 
forth is surplusage. That conspiracy Avas complete when the agreement 
was formed to deprive Amzi Raiuey of his right to vote. It need never 
have taken effect. The effect of the conspiracy might never have been 
felt at any election. The purpose of the conspirators — their intent — was a 
general one to defeat the right secured to Amzi Raiuey under the provi- 
sion of this first Section ; to violate a provision of the first Section of this 
Act ; and, therefore, it does not enter into the substance of the charge 
which we make in this count, that it should have had risference to a par- 
ticular individual, or to a particular election day, or to the use of any 
particular means, because the crime was complete, and the conspiracy was 
then in its full deformity, when that combination was entered intQ to vio- 
late the provisions of the first Section of this Act. 

I think, if the Court please, that the next objection that was taken to 
the first count of this indictment was, that the qualification of the said 
r^ale citizens were not fully set forth; that they were described in general 
terms as qualified to vote ; or, possibly, two or three specifications were 
mentioned, but not all. Now, if your Honors please, this, as I have al- 
ready said, is a statutory offense, and this indictment has to be drawn 
under this statute, and it becomes important to refer to some of the prin- 
ciples which regulate the drawing of indictments for statutory offenses. 
As the most convenient reference on that point, I cite 1 Bishop on Crimi- 
nal Procedure, Sec. 359: " Where the offense is purely statutory, having 
no relation to the common law — where, in other words, the statute specifi- 
cally sets out what acts shall constitute the offense — it is, as a general rule, 
sufficient in the indictment to charge the defendant ■with acts coming 
wholly within the description, in the substantial words of the statute, 
without any further expansion of the matter." 

Now, let me point out to the Court what seems to me the a})plication 



42 

of this principle to the present case. This is purely a statutory offense. 
Not that conspiracy is a purely statutory offense, for it is not ; but <'on- 
spiracy to violate the provisions of the first Section of this Act is a purely 
statutory offense, and, therefore, upon this principle, it is sufficient to 
charge the defendant with acts coming fully within the statutory descrip- 
tion, in the substantial words of the statute, and without any further ex- 
pansion of the matter. Well, now, in this count, if your Honors please, 
we have, under the sixth Section of the Act, charged these defendants 
with the offenses there described, to wit, conspiring together with intent 
to violate a provision of this Act. And if this principle be a sound one, 
we are not required any further to expand the matter. A statutory 
offense, under this statute, is this, nor more nor less — conspiring together 
with the intent to violate a provision of this Act. , 

And now, if your Honors please, if we have gone further, the utmost 
that can be required of us, upon this indictment, and upon the trial, is to 
make our proof correspond with our additional, but unnecessary allega- 
tions. I do not say that we cannot be held to prove that these divers 
male citizens of African descent are qualified, in all particulars, by na- 
tional and State law, to be voters at elections in this State. That we are 
ready to do. But we say that this count is complete, and we have only 
put a burden upon ourselves, if we have gone further than to charge in 
substance, and not the substance only, but the identical words of the 
statute. I say we have simply put an additional burden upon ourselves, 
if we have done more than to charge, in the language of the statute, or 
without further expansion than that these defendants conspired together 
with intent to violate a provision of this Act, to wit, its first Section. 

If the Court i)lease, there are numerous decisions applicable to indict- 
ments under statutes ; three or four of them, illustrating the application 
of this principle to this case, I propose now to bring before the Court. 
And I quote, for general convenience, from this same work, and also be- 
cause some of the authorities are not within reach, the case of the State 
against Gould, 34 N. H., p. 510: " Where the words of the statute are 
descriptive of an offense, the indictment must follow the language of the 
statute, and expressly charge the respondent with the commission of the 
described offense in the words of the statute or their equivalents, else their 
descrij)tion would be defective." 

The decision of this case would require us to do the very thing that we 
have done — charge this offense in the language of the statute. 

Another case — State against Hickman, 3 Halsted, 229 : " A variance 
between the language of the statute and the indictment will not vitiate if 
the words used in the indictment are equivalent to those of the statute." 
So that if, in the language of this authority, we had expanded the matter, 



43 

but still kept ourselves to equivalent terms, we should have been withia 
the principle which is decided by this case in 3 Halsted. 

There are other cases which I might cite, but the principle decided is, 
that it is not always necessary to describe the offense in the precise words 
of the statute. 

And again, the substance of the offense should be contained in an in- 
dictment ; or, as in another decision, the material words of the statute 
must be used. 

And again, an offense charged in the indictment substantially, pursu- 
ant to the statute, although there is not a perfect similarity, in the words, 
there is no variance in the sense, nor can the variance occur, indeed, in 
the operation nor the construction of the law. So the indictment was 
held to be good, and another principle decided — so many words used in 
the statutes to describe an offense as are necj'ssary, shall be used to state 
the offense in the indictment, and, in general, an indictment need not 
adopt the very words of the statute ; the same substani'e to a reason- 
able indictment is sufficient. 

Another decision which illustrates the same principle is an English de- 
cision : Earle's case in 2 Lewin. I am reading still from 1 Bishop on 
Criminal Law, Sec. 373. Coleridge, J., said : " A case is cited," and he 
is speaking of indictments under statutes : " A case is cited that it is nec- 
essary to establish that the wound was given by an instrument calcu- 
lated to produce the injury complained of, but they did not go to the 
length of saying that the instrument must be stated in the indictment. 
The indictment in this case has followed the words of the statute, and I 
am of the opinion that it is sufficient." 

Under a Tennessee statute, providing that no person shall maliciously 
shoot or stab another, it has been held sufficient for the indictment to- 
charge that the accused did unlawfully and maliciously shoot, &c. It is 
unneccssg.ry to describe the weapon, the hand in which it was held, the 
wound that was inflicted, or the circumstances attending the act. 
That is, when the statute does not require it, you shall not be required to 
go outside of the statute, and conform to common law rules. And this 
author concludes the examination of a great number of eases upon this 
matter of the drawing of indictments under statutes with this remark: 
"Any one who reads our American decisions in detail, and observes the 
diverse adjudications made upon the sufficiency of indictments drawn 
upon new and unexpounded statutes, will observe two things: that some 
judges are more ready than others to accept indictments which merely 
follow the words of the statute, and, secondly, that the tendency in modern 
time is to require the expansion beyond the words in fewer circumstances 
than formerly would have been demanded." 
■ Now^ if the Court please, would it be claimed that, as in the presejit ia- 



44 

stance, after charging a conspiracy not only in the substantia], but in 
the substantial and exact words of the statute, we are still to go on and 
designate by name the parties to be injured, describe jmrticularly the 
means to be employed, set forth particularly the time that it Avas in- 
tended it should take effect, and also that we should set forth all the legal 
qualifications of the parties to vote, whom this conspiracy was intended to 
reach and affect. The general answer is, that we are drawing an indict- 
ment under a statute, and that it is sufficient for us if we make the sub- 
stantial averments which, in the statute, are made to state the offense. 

And, in the present instance, I cannot be mistaken when I say that all 
that the statute requires of us is that we shall charge a conspiracy with 
intent to violate the provisions of this Act, and that we have, beyond con- 
troversy, done it, and whatever has followed by way of pointing out a 
class of individuals to be injured, male citizens of African descent, 
twenty-one years of age, qualified to vote, has only had this efifect, to put 
upon ourselves the additional burden, when we go before the jury, of 
proving what we have alleged; but in every other aspect of the case it 
was unnecessary, and is now properly described as surplusage. The 
ofFen?e which we charge is conspiracy, complete without any overt act ; 
complete, rounded, whole and full the moment the combination was 
formed with the purpose described ; that we have charged as fully as the 
nature of the offense required of us, and, more than that, as fully as the 
statute under which we drew it requires it. 

I believe, if your Honors please, that I have noticed at least ail the 
substantial exceptions which were taken to the first count of this indict- 
ment. 

And I come now to the second count. The second count charges that 
these defendants unlawfully did conspire together to injure, oppress, 
threaten and intimidate Amzi Rainey, a citizen of the U lited States, 
with intent to prevent and hinder his free exercise and enjoynjent of a 
right and privilege granted and secured to him by the Constitution and 
laws of the United States, to wit : the right of suffrage. 

The first objection which I recall, as made by the distinguisiied coun- 
sel for the defendants, is, that it is not alleged that Rainey was qualified 
to vote; and that he is simply described as a citizen of tlie United 
States. 

That is the first objection — that Rainey should have been described, 
clothed with all his legal qualifications as a voter, in this count of the 
indictment. Now, we say, in the first place, that this is substantially set 
forth in this count. When it is state/l that ho possesses a right and 
privilege which was secured to him by the Constitution and laws of the 
United States, to wit: the right of suffrage, we say that this is sub- 
stantial alhjgation that he was a qualified voter, because he was in the 



45 

possession and enjoyment of the light of suffrage, secured and guaran- 
teed to him by the Constitutiuu and laws of the United States, and that 
any more particular allegations that he was a qualified voter, to wit : a 
citizen of the legal age, resident for one year in this tate, and in York 
County for sixty days, are not necessary, but they ar all substantially 
included when he is described as a citizen of the I jited States. He 
possesses the right of suffrage, secured and guaranteed to him by the 
laws and Constitution of the United States. 

But, further than that, we say, as we have said before, that this is a 
purely statutory ofi'ense, and that we have charged the offense in the lan- 
guage of the statute. The language of the statute is, that " if two or 
more persons shall conspire together to injure, oppress, threaten or in- 
timidate any citizen, with intent to prevent or hinder his free exercise 
and enjoyment of any right or privilege guaranteed to him by the Con- 
stitution or the laws of the United States ;" and our indictment has fol- 
lowed the language of the statute, and has charged Allen Crosby and 
others witk conspiring together, (following the exact words of the.stitute,) 
with intent to oppress, threaten or intimidate. What says the statute? 
" Any citizen." What says the indictment? Amzi Rainey, a citizen of 
the United States, with intent to hinder (following the language of the 
statute) and prevent the free exercise and enjoyment of a right* and 
privilege granted and secured t^ him by the'Consiitution and laws of. 
the United States. The indictment follows the language of the statute, 
and the statute mahes it an offense to conspire to deprive, to conspire to 
injure, threaten and oppress any citizen; and, in place of any citizen, as 
named in this Act, we placed an individual, Amzi Rainey, a citizen of 
the United States, with intent to prevent and injure bis free exercise of a 
right and privilege granted and secured to him by the Constitution and 
laws of the United States. 

Here we say, again, that we have followed the principles of law which 
govern the framing of indictments- under statutes ; that we have described 
that offense in the language of the statute, and have applied it to an in- 
dividual who un.swers every description and every requirement of the 
statute, namely, a citizen of the United States, to whom a right is secured 
or guaranteed by the Constitution and laws of the United States. 

And, further than that, in the language of these authorities \Yhich 
we have presented , it was unnecessary for us to go. 

Another objection which was urged against the second count of this 
indictment, I believe, is the same ttfttt was urged against the first count, 
viz : That no day of election was named w'hen it was intended that this 
conspiracy should take effect. Of course, all that we have said in 
answer to that objection, with reference to the first count, is equally ap- 
plicable to this second count, and I shall not repeat it. 



48 

Another objection, also, which I have noticed as taken to the second 
count is, again, that the unhivvful means are not set forth. The day and 
the means are not set forth in this second count. 

Our great answer, if your flonors please, to all this is that Avhich is 
suggested by the nature of the offense which we are charging: that it is 
an offense of a nature which does not depend, if your Honors please, 
upon the means employed, or upon the day when it is intended they shall 
take effect, nor the individuals against whom it is aimed. It is an 
offense that is complete, short of that. It is an offense which consists 
wholly and entirely of a combination or agreement, by concerted action, 
to do an unlawful thing. 

How, I ask, can it be necessary, in order to charge substantially and 
fully, in order to put these defendants fairly in possession of everything 
that constitutes an essential ingredient of the charge which is brought 
against them, that we shall specify the means, or name the day upon 
which this conspiracy was to be consummated ? 

Whj', if your Honors please, let us suppose a case. "When such a con- 
spiracy as this shall be in motion — and I wish, if your Honors please, 
that I could draw from ray imagination; I wish I could divest myself of 
the knowledge that "svhen I state this case, I am stating an actual occur- 
rence in South Carolina, in this year of grace — let us suppose that a 
combination of two hundl-ed or more persons appear at the door of a 
colored citizen, in some County in this State, that they break violently 
into his house, that they smite down his Avill;, and next ravish his daugh- 
ter, and then fell him to the floor, that then they drag him forth upon 
the public highway, and, when the cqiitroversy rages high whether he 
shall be hung or simply whipped, they tell him that if he will hold up 
his right hand and swear before God that he •will never again exercise 
his own free choice in the matter of suffrage, his life shall be spared. 

Suppose that all those facts appear, and suppose that the name of this 
colored citizen is Amzi Rainey— these conspirators are at last brought be- 
fore the Court, charged, with the conspiracy which I have now supposed, 
and it is said that it is essential to this offense with which they are 
charged that we shall )iamc some particular day when that general oath, 
which they forced him to take, was to prevent him from voting. 

Our distinguished friend, Mr. Stanbery, says he urges nothing cap- 
tiously, takes advantage of no technicalities and no formalities, but he is 
here, simply — substantially — to defend his clients from this substantial 
charge — conspiracy. And yet, -wiien that man, whose name I have sup- 
posed to be Amzi Rainey, is utterly deprived, by threats and violence, of 
the right of suffrage, they say that we must go further ; and, although they 
have made him take an oath that he will never exercise his choice in the 
casting of his ballot, we must, forsooth, go further, and name a particu- 



47 

lar day upou wliicli Amzi Rainey sliould be prevented from exerei.sing 
his free choice in casting his ballot. 

Let us— if the Court please, if it be necessary — let us redeem the law 
from such, aspersions upon its purpose and its requii'ements as the va- 
lidity of such an objection as that would affix to it. It is not law — it is 
not reason. This offense was complete when they compelled Amzi Rai- 
ney to take an oath that he would never again vote as he chose. When 
they had interfered with the free exercise of this right of suffrage, no 
matter whether, in point of fact, the election day ever arrived, or Amzi 
Rainey did not exercise the right of suffrage, they had completed their 
conspiracy. They had invoked upon themselves the punishment which 
the laws affix to the crime of eonspir<.cy. 

So that our answer to that objection is two- fold : first, that the crime is 
complete, and its description is complete, in this second count of the 
indictment; and, second, that v/e have done all that the statute requires 
of us ; and that this is a statutory offense, purely so, and that every au- 
thority requires us simply to set forth the substantial crime in the sub- 
stantial language of the statute, without further expansion. 

I come now, if your Honors please, to the third count. And, in the first 
place, the same exceptions were urged to the second count, or, at least, 
the first three exee])tions, namely, that the qualifications are not stated, 
and that the day of election is not stated, and the unlawful means are 
not stated. Those three points are urged as applicable to this third 
count, which is a count charging these defendants with unlawfully con- 
spiring together, with intent to threaten, injure aud intimidate Amzi 
Rainey, a citizen of the United States, with intent to prevent his free 
exercise and enjoyment of a right and privilege granted' aud secured to 
hira by the Constitution and laws of the United States, to wit: the right 
of suffrage; and, further, charges that the said defendants, in the act of 
committing the offense aforesaid — that is, the said conspiracy — did commit 
a felony, (stating it substantially,) which is known as burglary by the 
laws of South Carolina. 

Mr. Stanbery, (interrupting). Before Mr. Chamberlain leaves the 
point, as to the means, I wish to call his attention to the ground upon 
which we relied. Xow, I will endeavor to make myself understood. If 
the Court please, the conspiracy here is against the right of suffrage. 
There is no other right whatever named in this count ; none whatever. 
There are two counts for conspiracy against other immunities, as the 
right of search, &c., but all the other counts in this indictment are for 
conspiracy to deprive the free exercise of the right of voting at an elec- 
tion. Mark that. My point is, that you must state the means by which 
that prevention took place, aud that the statute requires it. I agree 
that, in certain cases of conspiracies, the means of carrying out the 



48 

conspiracy need not be stated, but this statute requires you to state wliat 
mean.?, when you come to the question of prevention of voting. They 
have attempted to do this in another count, but the means stated are 
insufficient. They say threats, without telling us what they are. They 
say intimidation, v/ithout telling us what sort. They say this is all sur- 
plusage. I will say, gentlemen, that it is all mliterial. 

Now to the first Section : " That all citizens of the United States who 
are or shall be otherwise qualified by law ;" that is, not qualified under 
the fifteenth amendment, for that qualifies nobody. Now, v>'hat is the 
fourth Section ? " That if any person, by force, bribery, threats, intimi- 
dation or other unlawful means, shall hinder, delay, prevent or obstruct, 
or shall combine and confederate with others," which is the case here, 
"to hindei, delay, prevent or obstruct any citizen from doing any act 
required to be done to qualify him to vote, or from voting at any elec- 
tion, as aforesaid, such person shall, for every offense, forfeit and pay 
the sum of live b.undred dollars, to the person aggrieved thereby, to be 
recovered by an action in the case, v.ith full costs, and such allowance 
for counsel fees as the Court shall deem just, and shall, also, for every 
such offense, be guilty of a misdemeanor, and, on conviction thereof, be 
fined not less than five huRdred dollars, or be imprisoned not less than 
one month, and not oiore than one year, or both, at the discretion of the 
Court." It is this Section, if the Court please, which is directed to the 
protection of the suffrage. 

Mr. Corbin. There is no indictment upon that Section. 
Mr. Stanbery. Precisely ; for I read every word, and you will see that 
they exactly fit ; and if you have not got it under this Section, you have 
not got it under tlie law. This prevents the exercise of voting. . Now, 
how does this punish such an offense, not done by an individual, but by 
a combination ? How is it punished ? It is an inferior misdemeanor ; 
the fine cannot exceed §500, and the imprisonment cannot exceed one 
year. That is, for a conspiracy against the suftVage, not against the gene- 
ral immunities given under the Constitution of the United States, but 
against a right of suffrage of a person " qualified otherwise to vote," 
says the first Section. That is the case punished in that way. Now, 
Avhat Section does the gentleman read from? Ke reads from the sixth 
Section. Mark that. This Section requires the means to be set out, 
and th(f offense to be punishei as a misdemeanor. It is not called a 
felony. • 

What is the next Section? It is against an individual who shall pre- 
vent, hinder, control or intimidate, or shall attempt to prevent, hinder, 
control or intimidate any pei"son from exercising, or in exercising, the 
right of suffrage, to whom the right of suffrage is secured or guaranteed 
by the fifteenth amendment to the Constitution of the United States, by 






49 



means of — now how? " By means of bribery, threats, or threats of de- 
privhig such persons of employment or occupation ; or of ejecting such 
person fram his house, lauds or other property ; or by threats, or refus- 
ing to renew leases or contracts for labor; or by threats, to himself 
or family; such person, so offending, shall be guilty of a misdemeanor." 
Misdemeanor, only. Mark that, if the Court please — " and shall, on. 
conviction, be fined not less than five hundred dollars, or be impri- 
soned not less than one month, or more than one year, or both, at 
the discretion of the Court." 

Section 6 says something more serious : " That, if two or more persons 
shall band or conspire together, or go in disguise upon the public 
highway, or upon the premises of another, with intent to violate any pro- 
vision of this Act, or to injure, oppress, threaten or intimidate any citi- 
zen, with intent to prevent or hinder his free exercise or enjoyment of 
any right or privilege granted or secured to him by the Constitution 
or lavrs of the United States, or because of his having exercised the- 
same, shall be held guilty of felony, and, on conviction thereof, shall 
be fined or imprisoned, or both, at the discretion of the Court, the 
fine not to exceed 65,000, and the imprisonment not to exceed ten 
years ;" ten years instead of one ; $5,000 instead of $500 — a felony 
also — "and shall, moreover, be thereafter ineligible to, and disabled 
from, holding any ofiice of honor, profit or tru t created by the Constitu- 
tion or laws of the United States." 

Here they have especially provided what shall be the offense of 
preventing a man from voting, by' individual act, or by conspiracy, 
and what shall be the punishment; and that it. shall be done by 
threats of violence. They have provided for all that, and made it 
only a 'i.isdemeanor. How can you construe that statute, and say 
that felony is intended to be embraced in the sixth Section. You must 
construe a whole statute together. 

The gentlemen, when they go upon the sixth Section, have not got 
upon the suffrage Section. That is specially provided for. The word 
" suffrage " and " vote " is not mentioned in this sixth Section ; not a 
word of it ; it is for some other immunity. 

The actual exercise of the right of voting, the means and the qualifica- 
tions, I contend, must be stated. 

Mr. Chamberlain, (resuming). I don't think, if your Honors please, 
that it is necessary that I should go back to argue those questions. Our 
answer is very simple and very brief: that, whatever we might have done 
under the third, fourth or fifth Sections of this Act, we have chosen to 
bring this indictment under the sixth Section for a violation of the first 
Section ; that the fourth and fifth Sections describe a different offense, of 
a different grade, punishable in a different manner. 



50 

• 

That sixth Section is tlie only Section which is aimed against a conspi- 
racy of two or more persons, with intent to violate the provisions of the 
Act, or a conspiracy to injure or intimidate any citizen of the United 
States, with the intent to prevent them from the free exercise of a right 
secured to them by the Constitution. ISTow, we hav^ nothing in the 
world, if your Honors please, to do with the second, third, fourth or fifth 
Sections of this Act. We have found a conspiracy in York County, 
Two or more persons have conspired together with intent to deprive 
Amzi Rainey of the right secured to him by the first Section of this 
Act, £tnd we have not gone to work to indict for any other offense, 
but simply for that offense, and we have indicted according to the 
language of the Act, and we have substantially, and fully set forth the 
comj)lete crime which we charge under the sixth Section, as I have 
repeatedly said, and nothing in the • argument of t e distinguished 
counsel, who has just been addressing this Court, makes with any 
force against this position. For, whatever else we might have done 
under this Section, the question is, what we have done? and have we done 
that correctly which we have attempted to do ? Now, I say to the dis- 
tinguished counsel, that there is no other Section of this Act under 
which we can indict tv;o or more persons for conspiracy to deprive 
Amzi Rainey of his rights, or to injure him, v;ith a view to deprive him 
of a free exercise of his constitutional rights. He has read the fourth 
Section, but thalt is aimed against a single person. 

Mr. Stanbery. The fourth Section ? 

Mi: Chamberlain. The fourth Section. 

Mr. Stanbery. Oh, no ! » » 

3Ir. Chamberlain. Oh, yes! That person may combine or confederate, 
but still the offense is limited to an individual, and if the counsel had 
carefully read the Section, it would so appear to him. " If any person." 
It does not constitute a conspiracy when he combines with others, but is 
simply an offense of combining. It is limited to the first individual, and 
it is not until you come to the sixth Section that you have anything 
about two or more persons conspiring. 

This is susceptible of proof. I do not think it is a matter of opinion. 
I think I am not rash in claiming that the distinguished counsel is sim- 
ply mistaken, and that a careful reading of the Section will convince him 
of the mistake. We have selected — I repeat to the Court — we have se- 
lected the only Section of this Act under which we can indict two or 
more persons for. a conspiracy to deprive Amzi Rainey of his rights, and 
in doing that we have exactly followed the statute. 

Well, I come now to the third count, against which the same objec- 
-tions, as to the jaames of parties intended to be injured, the means to be 
employed to injure them, and of the day of the election on which the con- 



51 

spiracy was to take effect, are urged, and our answer to all those objec- 
tions have already been fully stated. 

I come now to an objection Avhichis certainly one of the most important 
which has been urged ag:iinst this indictment. It is that, in the third 
count, after charging Alien Crosby, and the other defendants, with a con- 
spiracy to injure and oppress Amzi Rainey, with intent to prevent and 
hinder his free exercise of his rights, we have charged that, in committing 
that offense, they have committed another offense, v^^hich is set forth, and 
which constitutes the offense of burglary, under the laws of the State of 
South Carolina, The objection which is urged to this count is, that we 
have simply charged these defendants with the commission of what 
was excellently described by the counsel yesterday as a domestic 
crime — a crime that originally, and outside of this statute, at least, 
would have been simply an offense against the laws of the State of 
South Carolina ; and the objection is urged that this Court has no juris- 
diction to try and convict Allen Crosby, and those other defendants, of 
the crime of burglary under the law of South Carolina, 

The argument of the counsel was ehxborate, and it is within the recol- 
lection of the Court, While pointiug out the wide scope of Federal 
jurisdiction over all offenses, it was contended that it was alwaj^s con- 
fined to Federal territory, or to the enforcement, exercise or protection of 
some federal function. I think I give full force and scope to the argu- 
ment of the counsel in this statement of this objection. Well, now, if 
the Court please, I do not know but we are ready to grant the entire ar- 
gument of the distinguished counsel' upon these points ; and to agree 
with him, that the United States Courts cannot take jurisdiction to try 
and convict for, and punish for, the commission of a crime which is sim- 
ply a crime within the territory of South Carolina, What we claim is — 
and I come at once to the point of our argument, and our answer — what 
we claim is, that this indictment is drawn under the seventh Section f 
this Act, which is now under discussion. The right is not claimed for this 
Court to take jurisdiction of this offense, either to try or to punish for its 
commission. Now, in order that my meaning and argument may be ap- 
prehended, I ask the Court's careful attention to the reading of the 
seventh Section, It is assumed in the argument of the counsel through- 
out that this is an attempt to tr}^ Allen Crosby and olhers for burglary, 
and that, if they can be tried, they can be convicted and punished for the 
crime of burglary, against the laws of South Carolina. Now, let us see 
what this seventh Section, under vrhich this portion of the third count is 
drawn, attempts to do : 

"Section 7, Be it further enacted. That if, ia the act of violating any 
provision of either of the two preceding Sections, any felony, crime or 
misdenieanor, shall b3 committed, the offender, on conviction " — what ? 



02 

1: your Honors please, the argument of the clistiiigulshed counsel would 
lead us to suppose that the next words would be that " upon conviction 
of said felony or other crime." No ! — "on conviction of such violation 
of said Section, shall be punished with the same punishment as may at- 
tach to the said felonies, crimes, and misdemeanors, by the laws of the 
State under which such offense was committed." 

Now, if your Honors j^lease, recollecting the language of the Section, 
v,'e say this, that this Section did not contemplate that this Court was to 
try the crime of burglary; nor that this jury should convict, and this 
Court punish for the crime of burglary; but simply this, that if it appears 
that, in committing the conspiracy, the offense of burglary, or any olhet 
felony, was committed, then, not upon conviction of the burglary, but 
upon the conviction of the consjiiracy, or whatever offense was charged 
in the two preceding Sections, the measure of punishment for the conspi- 
racy, not for the burglary, should be the same Avhich attaches to the 
crime of burglary, or any other crimes, according to the laws of South 
Carolina. 

Now, if your Honors please, it seems to me that this comes very far 
sliort of claiming jurisdiction for this Court over the crime of bur- 
glary. ^ ^ _ . ^ 

It is simply, if your Honors please, a mode pointed out by this statute 
for arriving at the pro])er ])unisbnient to be affixed, not to the burglary, I 
repeat, but to the conspiracy. It is simply a statutory mode of deter- 
mining, for this Court, how much punishment shall be inflicted upon 
these defendants. If they are found guilty by this Court of the crime 
of conspiracy, there is to be no conviction of burglary; there is to be no 
conviction for any^ offense except that w'hich is charged as against the 
peace and dignity of the United States. But the statute provides that 
if, in the act against the United States, they shall commit any other 
felony — what? — that this Court shall punish them for that felony? 
No ; but upon conviction of the crime that is charged against them, as 
against the peace and dignity of the United States, the punishment of 
that crime shall be regulated and determined bj' the punishment that is 
affixed to the crime of burglary under our State laws. 

"Well, now, if your Honors please, we find, as a matter of fact, in 
the investigation of this case, as Ave believe, that the crime of bur- 
glary, according to the laws of South Carolina, had been committed in 
this instance, and, therefore, we state it in this indictment, in form and 
manner, according to the laws of South Carolina. 

But we have not placed it here in this count u]^on the theory, at all, 
that this Court, or the jury of this Court, are autliorized to bring in a 
verlict, upon this count, of guilty of burglary, against the peace and 
digni'v of South Carolina, but that the statute, in order to enable thi- 



Court to fix the proper penalty to the crime of conspiracy, has author- 
ized us to enquire, in this count, whether an additional crime or felony 
has been committed or not, and not to convict, as 1 have said, and repeat, 
nor to punish for that crime, but simply to ascertain whether that crime 
has been committed, and if it has been committed, then to let it be 
a measure of the offense which is charged as against the peace and dig- 
nity of the United States. Now, that is our theory of tlii;^ law ; that is 
our idea of vrhat the law intended that this count should do ; that is the 
theory ui)on which this count, in the indictment, is drawn ; and in this 
vicvr of it, if your Honors please, it does not claim jurisdiction of any 
offense committed in South Carolina, against the laws of South Carolina, 
but simply authorizes this Court, through its jury, to inquire whether the 
crime of burglary, or any other felony or crim^ against the laws of this 
State, has been committed ; and, if so, to make that the measure of its 
punishment of the offense against the laws of the United States. 

Mr. Stanbery. How does the Court inquire ? Plow find the fact ? 

Mr. Chamberlain. The jury finds the fact, thus: "Guilty of the third 
count." That is, if the verdict is general, guilty of a conspiracy against 
Amzi Rainey, and that, in committing this conspiracy, they committed 
the offense of burglary. Or, suppose that they do not nnd that we are 
not able to establish the burglary, the verdict would be "Guilty of con- 
spiracy," but not guilty of the commission of the crime of burghiry, in 
the act of committing the conspiracy. 

A special verdict, such as is set forth in this Massachusetts case, 
"Guilty of manufacturing the indigo,, but not of selling it." In other 
v.'ords, a special verdict. 

But, if your Honors please, this indictment, so far as our duty in con- 
structing and presenting it here is concerned, is defensible upon the 
ground that we have done precisely Avhat the statute authorized and in- 
tended that Ave should do; that if, in tlie act of violating any provision 
in either of the tv.'o preceding Sections, they shall commit any other 
felony, upon the conviction of conspiracy they shall be punished accord- 
ing to the felony, and we consider that charging this burglary — the in- 
corporation of this burglary, under the laws of South Carolina — into 
this count, in order to fix the quantum of punishment which this Court 
may award to the conspiracy, falls very far short of claiming for this 
Court that they may take cognizance of the crime of burglary, and try 
and punish it. They are not authorized in this Act to punish for bur- 
glary; the Act does not attempt to say they have the jDovver to punish 
for burglary; but it does authorize an inquiry, in connection v.ith the con- 
spiracy, wh-etber the crime has been committed. If it appears, by the 
verdict of the jury, that the crime of burglary, according to the law of 
South Carolina, has been committed, then Avhat? That vou sentence 



54 

tliem for burglary ? Kot at all. That ofTeuse stops at this point, aud 
you simply lool iato the laws of South Carolina to find the punishment 
which you would affix to the crime of burglary if you had jurisdiction 
over it, and then you affix that punishment, not to the burglar}^, but to 
the conspiracy. 

Now, may it please your Honors, we come to the fourth count ; and I 
will be as brief as possible. 

The substantial exceptions urged to the fourth count are similar to the 
preceding counts, that it does not allege that Rainey was a citizen of tlie 
United States. The fourth count charges Allen Crosby and three other 
defendants with an attempt to control Amzi Rainey in the exercise of the 
right of suffrage; and though this count is drawn under the fifth Section 
of the Act, it charges the direct offense, and not the conspiracy to com- 
mit an offense. It charges the direct offense of an attempt to control 
AmziRainey in the exercise of the right of suffrage, and the objection is made 
that we have not stated that Amzi Rainey is a citizen of the United States. 
Our answer is, that the statute does not require us, in order to complete 
this offense, to state that he was a citizen of the'United States. The Court 
will observe that we have examined this Act, and that we have had our 
reasons, whether good or otherwise, for the manner of drawing these in- 
dictments. 

The fifth Section, under which this fourth count is drawn, simply says: 
" if any person shall prevent, hinder, control or intimidate, or shall at- 
tempt to hinder, control or intimidate " what ? any citizen of the United 
States ? Not at all ; "any person from exercising, . or in exercising the 
right of suffrage;" and so, instead of saying Amzi Rainey, a citizen of the 
United States, duly qualified to vote, we have simply said, Amzi Rainey, 
A PERSON. It is also objected that it is not stated that the right was 
then secured to him, but that the language of the count is " to whom the 
right of suflTfage is secured and guaranteed by the fifteenth amendment to 
Constitution of the United States." We cannot think there is substance 
in that objection. 

The fifteenth amendment — the Court has Judicial knowledge — was then 
in force, for the rights secured by the fifteenth amendment have always 
been secured since that amendment has been in force. Another objection 
is, that it is not alleged that he was otherwise qualified to vote than by 
the fifteenth amendment; and, in this respect, we follow^ again the lan- 
guage of the statute, which simply says, " to whom the right of suffrage is 
guaranteed by the Constitution of the United States." The statute does 
not require us to do more than to say that it was guaranteed and secured 
by the fifteenth amendment to the Constitution of the United States. But 
the objection is raised that the fifteenth amendment clothes no one with 
the ii'j;lit of suffrage absolute. 



55 

We are disposed to admit, if your Honors please, that the fifteenth 
amendment does not clothe any one absolutely with the right of suffrage; 
but that it is substantially, practically and really secured to the colored 
people of the United States — to those who have been slaves, or who are of 
a dark color, or of African descent. 

We say that the objection is too nice ; that the fifteenth amendment 
does not give to them the right to vote ; strictly speaking, it only protects 
them — we agree with counsel for the defense — it only protects them 
against discrimination on account of race, color or previous condition ; but, 
practically, really, as a great public fact throughout the length and 
breadth of the Union, the fifteenth amendment does secure and does guar- 
antee to this class of our citizens the right to vote, and it was so regarded 
by Congress, in making use of this language, which we have exactly fol- 
lowed, in this Section of the Act, " to whom the right of suffrage is se- 
cured or guaranteed by the fifteenth amendment to the Constitution of 
the United States." 

Again, the objection appears that no election is set forth, and our an-^ 
swer is as before. To the fifth count, v/hich is the same as the fourth, 
with the addition that, in committing the offense, they did commit bur- 
glary, according to the laws of South Carolina, the same objections are 
taken, and the same answers are applicable. 

We come now to the sixth count, which charges a conspiracy, with in- 
tent to injure, threaten or intimidate Amzi Rainey, a citizen of the United 
States, because of his exercise of a right granted and secured to him by 
the Constitution and laws of the United States, to wit : the right of suf- 
frage. The same objections, as to persons, means, &c., as were urged to 
the second count, are urged to this, and, in addition, that it contains no 
separate allegation. I believe that was the objection, that he actually ex- 
ercised the right. It simply charges that the conspiracy was with the in- 
tent to injure, oppress, threaten and intimidate him, because of his free 
exercise of the right of suffrage. Our answer again is, that here we have 
followed the language of the statute. It simply requires us to charge that 
he was oppressed, threatened or intimidated, or that the conspiracy was 
to threaten and intimidate him, because of his free exercise of the 
right. 

I v;ould say again, as we have said to every objection to this indictment, 
that it is substantially and sufficiently averred in the allegation that it was 
because of his exercise ; that it is not necessary that we should go further 
and say that he exercised, and because of that exercise he was oppressed 
and intimidated. In the first place, we have followed the statute strictly ; 
and in the next place, according to the common law principles, we have 
sufficiently averred it in stating that it was done becaase of his exercise 
of the right of suffrage. 



56 

The seventh count is of the same offL-nse, together with the crime of 
burglary, and of that I have nothing further to say. 

We come now to the eighth count, which charges a conspiracy, with in- 
tent to deprive Amzi Rainey of a right and privilege secured to him by 
the Constitiition of the United States, to wit : the right to be secure in 
his person, houses, papers and effects from unreasonable searches and 
seizures. 

The objection that was urged against this count — the main objection — 
is that this is a right v/hich can only be pi'otected and vindicated by the 
State laws ; that, while it is undeniable that citizens of the United States 
have the right, under the Constitution, by its fourth amendment, to be 
secure in their persons, houses, papers and eflects, from unreasonable 
searches and seizures, yet that it is a right which depends, for its practical 
value and enforcement, upon the State laws. I believe I am correct in 
fjtating the objection. I think counsel for the defendants agreed yester- 
day that the concluding Section of the fourteenth and fifteenth amend- , 
rnents, Avhich clothed Congress M'ith the power, by appropriate legislation, 
to enforce the provisions of those two constitutional amendments, were 
not necessary ; that the general power had already been reserved to the 
Congress to enforce the provisions — the rights that were secured by the 
Constitution to the citizens of the United States. 

All that is precisely what we claim, in the present instance. This Act 
claims to do, that is, precisely what we claim is the purpose of this Act, 
to enforce this right of the people of the United States to be secure against 
unreasonable searches and seizure, through a statute of the United States. 
And if the power to enforce and secure to citizens of the United States 
the rights that are guaranteed to them by the Constitution, does reside in 
Congress, as I understand the counsel to agree on yesterday, and that, 
consequently, those Sections of the fourteenth and fifteenth amendments 
were unnecessary, then here is a statute which undertakes directly, and 
without leaving it any longer to State lav/s, to protect the citizen of the 
United States from unreasonable searches and seizure. Congress, it is 
admitted, if I am not mistaken, has the right to secure to its citizens their 
constitutional privileges, immunities and rights, by appropriate legisla- 
tion ; and how is the legislation which seeks to secure to Amzi Rainey his 
rights, under the Constitution, to be secure in his person, papers and effects, 
from unreasonable searches and seizures, open to any constitutional ob- 
jection. What is to prevent the Congress of the United States from 
doing this? 

1 acknowledge, with the counsel who addressed you yesterday, that 
almost every personal right to which he referred, such as the right to be 
secure from an assault here in this court house, is secured to him by the 
State laws. But is it not also competent, if those rights are guaranteed 



57 

to citizens of tlie United States by the Constitution of the United States, 
is it not an admitted right of Congress, by appropriate legislation, directly 
to enforce those rights, and no longer to leave them only concurrently to 
be exercised by the State Courts ? It is true, as the counsel said yester- 
day, that he and I are protected in all our constitutional rights by the 
lavvs of our respective States. But it is not true, if your Honors please, 
of Arazi Rainey, and many others; and Congress saw it, and in an exer- 
cise of power, which I understand counsel to admit as belonging to Con- 
gress, it has said we will protect you. The Constitution of the country 
secures you the right to be secure against unreasonable searches and seiz- 
ures. You are not secure. Large classes of the citizens of the United 
States are not secure, and we denounce a penalty against those who shall 
conspire to rob you of these constitutional rights. 

The ninth, tenth and eleventh counts of this indictment, as the Court 
13 aware, are drawn under the provisions of the Act of April 20, 1871. 

The ninth count, which is a conspiracy for the purpose of depriving 
Amzi Rainey of the equal protection of the lav.'s, contrary to the Act of 
Congress, in such case made and provided, and against the peace and 
dignity of the United States. And that is the charge. 

This count is founded upon the second Section of the Act of April 2oth, 
1871, which provides that, if two or more persons, in any State, shall 
conspire together (omitting unnecessary words) for the purpose of de- 
priving any person, or class of persons, of the equal protection of the 
laws. We have followed the language of the statute, and we have 
charged these defendants with conspiracy together to deprive any person, 
to wit, Amzi Rainey, of the equal protection of the laws. The objection 
is made that we should have said what laws, what manner, and on what 
occasion. Our first answer is, that the statute does not require this ; tliat 
the offense exists under the provisions of the statutes, which are simply, 
and only, that they shall conspire to deprive a person of the equal pro- 
tection of the laws. 

The tenth count is for a similar conspiracy to deprive of equal privi- 
leges and immunities under the law. And here, too, we followed the 
exact language, "shall conspire together to deprive any person of equal 
protection under the laws." 

The same objections are made to this count, and the answer is the same, 
that we have followed the statute, and that this is purely a statutory 
offense. The last count charges a similar conspiracy for the purpose of 
depriving Ajnzi Rainey, a citizen of the United States, lawfully entitled 
to vote in his person, on account of his having given his support, in a 
lawful manner, in favor of the election of A. S. Wallace, a lawfully 
qualified person, as member of Congress of the United States. 

And here again Ave have followed, in every particular, the language of 



58 

the statute. If two or more persons shall conspire together to injure any 
citizen — " did conspire together to injure Amzi Rainey" — in his person 
or property. 

The count charges that they did conspire to injure Amzi Rainey in his 
person, on account of such support and advocacy. 

I think I heard something yesterday about the necessity for charging 
that it was for voting. Some reference to the word support instead of 
vote. The word " support " is a statutory word, and we have so charged 
it — on account of giving his support in a lawful manner in favor of the 
election of any lawfully qualifiecl person — " in favor of the election of A. 
S. Wallace, a lawfully qualified person " — as a member of the Congress 
of the United States. 

In all these particulars we have followed the language of the statute. 

ARGUMENT OF THE HON. D. T. CORBIN. 

May it please the Court : 

In what I have to say this afternoon, I shall endeavor to be as brief as 
possible. I do not think it necessary that I should travel over the whole 
ground that my assistant, the Attorney General, has gone over, and I am 
anxious not to detain the Court w'ith a discussion which may be unneces- 
sary — especially at this stage of the case. If the Court please, I will 
indulge in some general remarks upon the statutes under which, or upon 
which, these indictments have been drawn, and upon the constitutional 
questions which are closely connected with them. The indictments are 
drawn on the 5th, 6th and 7th Sections of the Act of Congress of May 
31, 1870, and Section 2 of the Act of Congress of April 20, 1871. All 
the counts in the indictment, except the last three, are drawn upon the 
first mentioned Act. 

To ascertain what the Congress of the United States intended to for- 
bid — what they intended to punish — we must look into the Act they 
have given us. We cannot look anywhere else. There are two classes 
of crimes known in the Courts of the country, and only two great 
classes. One is the class known and punishable at common law ; the 
others are statutory crimes. For the first we look into the decisions of 
the Courts — precedents which have been established through a practice 
of many years ; for the second wc look to the acts of the law-making 
power. For the first, we are dependent upon the law as given to us by 
the Courts and immemorial usage. For the second, wc look into the 
laws given us by the Legislature — the law-making power. 

In drawing an indictment for a statutory oflfense, we usually follow the 
language of the statute. 

To add to, or subtract from, any statutory oflfense, any words of de- 
scription, in some sense, and to the extent of the addition or subtraction, 



59 

changes the offense, and we are hi danger of charguig something that 
Congress has never provided a penalty for. Hence it is, that I, as a 
prosecuting attorney, through a long number of years, have felt com- 
pelled to adhere to the statute. I have not had the experience of my 
distinguished friends on the other side, but I have had some expe- 
rience, and I have learned to avoid two things in drawing indictments, viz : 
not to amplify and explain, by additional word^, the offense which Con- 
gress has described, and put myself to the labor of proving more than 
Congress required I should prove, if I failed to use all the word;^, or their 
equivalent, used by the statute in describing the offense. I should be 
met by the objection, on the other side, if I had added some word,s that 
the distinguished counsel have suggested — a large number of allega- 
tions — you have described an offense that the statute does not describe. 

On the other hand, if I had chosen to subtract any words from the de- 
scription of the offense, I should be met by the objection that there was 
no such offense in the statute. We desire then, always, in framing in- 
dictments, to steer between Scylla on the one hand, Charbydis on the 
other — either quite fatal. Then, if we are to look into the Act of Con- 
gress to find what Congress desired to punish, we allege that the persons 
did exactly what it is said they shall not do, or failed to do just what 
Congress says they shall, and no more. If comprehen-^ive words are 
used in the statute we use them in the indictment. The law-making 
power chose to use such. It is their choice, and not ours nor the Court's ; 
it is the duty of the Court to explain what the Act means ; to propound 
what its language comprehends, if it is comprehensive language, and 
hold the prosecuting attorney to prove what it comprehends. For instance, 
take the words "lawfully entitled to vote ;" that is the language of the 
statute, not mine. Well, now, we know very well that, to be lawfully 
entitled to vote, comprehends several very distinct facts, namely, a male 
citizen of the United States, a resident within the State one year, and 
sixty days Avhere he proposes to vote ; all those things are comprehended 
in the term " lawfully entitled to vote." 

And, when we come to prove the allegation that he was a citizen law- 
fully entitled to vote, we are compelled to prove those facts. There is 
no ambiguity about the term, because the statute, the laws of the United 
States and of the State, tell us exactly what lawfully entitled to vote means. 
Nobody can be at a loss for a moment as to what is intended, or what 
must be proven. 

Again, the objection was made to the words used in the last count, 
which, of all others, I thought the counsel would be satisfied with, be- 
cause it is quite explicit : "to vote for a person for Congress, namely, A. 
S. Wallace," "a lawfully qualified person " for that office. Well, now, 
the distinguished counsel on the other side says that we ought to have 



60 

alleged that A. S. Wallace was 25 j^ears of age ; that he was a citizen of 
the United States ; that he had had a residence within 'the State a suffi- 
cient time to hold the office. Why, if the Court please, we should 
never, if such rules of construction are to be applied to statutory offenses, 
be able to draw an indictment. Obliged to go on and explain every 
comprehensive word the statute uses ! Wlien should we get an indictment 
drawn? when should we know that we had described an offense? I say* 
if the Court please, simply, never. I should draw an indictment this 
way, the Attorney General another way, the distinguished counsel on the 
otlier side would each draw one for themselves, and ton thousand chances 
to one, that no tvvo of us would draw an indictment the same. 

Well, I say, may it please the Court, that we must use the language 
of the statute, and v;e must depend upon the Court for the definition of 
that language. 

If the Court please, as was said in the United States against LaCost, 
in Second Mason's Circuit Court Reports. The language, which I quote, 
is found on pages 141 and 142. This was an indictment under the Act 
to punish the importation of Africans into the United States — or an Act 
against the slave trade. The Court says, in reference to an objection, 
that the language of the statute is too indefinite, and is unintelligible, 
that it is the chosen language of the statute. We use the chosen lan- 
guage of the statute — we are not bound to define or explain it. Now, 
the Court will see, and I need not repeat, in this connection, we have 
chosen, or rather we have used the language of the statutes, and Ave have 
alleged, under this sixth Section, that two or more persons did conspire 
together to oppress and threaten a citizen, namely, Amzi Rainey, with 
intent to prevent and hinder the free exercise, &c. Comprehensive, it is 
true, but who is responsible for that language? We must receive it from 
the law-making power, and endeavor to expound and explain it. And 
if we find a citizen violating this Act, we must charge him ; and, if there 
are any objections made, we must look into the Act to find whether we 
bring the defendant, by proof, within the language of the statute, and 
the Court will tell us what the offense is, and what the statute means; 
what is intended to be granted and secured to him ; what the right that 
he is deprived of 

I think, may it please the Court, that what my associate has said, with 
these views, is about all that need be said upon the frame-work of these 
indictments. I think a misapprehension has existed on the other side — 
a supposition that these indictments were drawn upon the third and 
fourth Sections of the Act. I think so from the distinguished counsel 
cpioting, in the presence of tlie Court, the third and fourth Sections of 
the Act. They do not apply to those Sections, and Avere not drawn upon 
those Sections, although there is sometliing in this Section in reference to 



61 

voting, or ratlier a preparation to vote. Several offenses are described 
there. I have no doubt we roight have indicted these defendantj5 under 
those Sections, but an offense luid been committed under the fifth Sec- 
tion, and, also, under the sixth Section of the Act, and these indictments 
are drawn under those Sections. 

As to stating the unlawful means and all objections in reference to the 
first, second, third and fourth counts, the Attorney General suiSciently 
answered, and the authorities which he has cited cover the case exactly. 
I desire to call the attention of the Court to a view of this sixth Section 
that has not been very fully elaborated, and that is: that Congress has 
attempted to secure the right of citizens under all the provisions of the 
Constitution of the United States, and under all the laws of the United 
States. One of the rights and privileges secured by the Constitution of 
the United States is expressly alleged to be the right to be secure in his 
person and property from reasonable searches and seizures. 

The distinguished counsel says that it is true the Constitution reads so, 
but that the State secures citizens in those things ; to which I reply, the 
Constitution of the Uniied States also secures him. It is true we have 
a Bill of Rights in this State, and a Constitution that declares all those 
things substantially, although not in the words of the Constitution of tlie 
United States. I desire to call the attention of the Court to this, viz : 
that these amendments were formerly regarded as restrictions on the 
Congress of the United States. The Court will see, in looking into Bar- 
ron against Baltimore, that Chief Justice Marshal, in reference to these 
amendments, used something of the following language: "The Consti- 
tution of the United States was established by the citizens of the United 
States for themselves, for their own, and not for the government of indi- 
vidual States. Each State established a Constitution for itself, and in 
that Constitution provided such limitations and restrictions, upon the 
powers of its particular government, as its judgment dictated. The peo- 
ple of the United States framed such a government for themselves as 
they supposed best adapted to their situation, and best calculated to 
promote their interests. The pov/ers conferred upon this government 
were to be exercised by'itself." * ''•' * " It is a part of the history 
of the day" — and it is universally understood — "that the great revolu- 
tion, which established the Constitution of the United States, was not 
effected without immense opposition. Serious fears were extensively en- 
tertained that those powers which the patriot statesmen, who then 
watched over the interests of our country, deemed essential to union and 
to the attainment of those valuable objects for which union was sought, 
might be exercised in a manner dangerous to liberty. In almost every 
Convention by which the Constitution was adopted, araendmets to guard 
against the abuse of power were recommended. These amendments de- 



62 

manded security agaiust the apprehended encroachraents of the General 
Governraeut— not against those of the local governments. In compli- 
ance "with a sentiment thus generally expressed, to quiet fears thus ex- 
tensively entertained, amendments were proposed by the required 
majority in Congress and adopted by the States. These amend- 
ments contain no expression indicating an intention to apply them to the 
State Governments." 

The counsel for the plaintiff in error insist that the Constitution was 
intended to secure the people of the several States against an undue ex- 
ercise of power, by the respective State Governments, as well as against 
that which might be attempted by the General Government; but the 
Court say that these restrictions, contained in the amendments to the 
Constitution, were upon the United States Government, and not upon 
the State Governments. I\Ir. Story, in his commentaries on the 
Constitution, informs us that this provision was made to protect the 
citizen against the encroachments of Congress ; that is, that Congress 
should not subject any citizen, as was formerly done in England, to un- 
reasonable searches and seizures, in houses, persons and property. That 
was the sentiment of this country when these amendments were adopted ; 
but what do we see in the progress and history of this country? Xearly 
one hundred years have passed, and the sentiment has changed upon that 
subject, and it is feared that citizens of the present day are in danger of 
encroachment by the State governments. 

After the revolution we have recently had, it is seen that the States are 
disposed to encroach upon the rights of the newly enfranchised citizens; 
and how are they to be protected ? Why, manifestly, that was the ob- 
ject of the fourteenth amendment, the same as nearly one hundred years 
ago, to protect from the National Government. We have now, under the 
fourteenth amendment, gone further, and said this immunity and right 
shall be secured, as against the State Governments, and Congress shall 
enforce this provision, this new amendment of the Constitution, by ap- 
propriate legislation. How now, let us enquire, has Congress attempted 
to do this? How secure the citizen against the State Governments ? 

They have chosen to say that ail combinatioMs of persons, to injure, 
oppress and intimidate a citizen, with intent to deprive him of any right 
secured to him by the Constitution, shall be punished. Well, my friends 
on the other side, say, " this is not the thing that is intended in the 
fourteenth amendment; this is not appropriate legislation. Congress 
should have passed an act restraining the power of the State Govern- 
ment." Well, now let us see ; suppose Congress, in the strict letter of the 
Constitution, had passed a law punishing the Legislature, punishing the 
Executive, and Judges, and Sheriffs, and Constables, and Magistrates. I 
can well imagine that an Act of that kind might have been passed, but 



63 

your Honors may see \yhat the objections are to it at once. Why punish 
the Executive — punish the Legislature for passing laws against the 
citizen ? 

But Congress did not see fit to enact such a law as that. What did 
it do? It said we will pass a law to punish all persons who combine or 
conspire against the rights of any individual citizen, and will thus pro- 
tect him against the encroachment of State power. That is precisely 
what Congress hasdoneiu this Act. They may say that it is indirect, but 
your Honors vrill see that it accomplishes the purpose. It is what the 
Congress of the United States has said is appropriate legislation. Who 
is to judge what is appropriate legislation? It is a principle of law, and 
cue that the Supreme Court has announced over and over again, that 
where, by the Constitution, or where, by an Act of Congress, discretion is 
lodged, that -individual, or person, or body, in whom it is lodged, must 
exercise that discretion. The Constitution of the United States has 
lodged this discretion in Congress. Where else could it lodge it? Con- 
gress exercises it. Who is to say no ? May the Court? The Court has 
nothing to do with the law, nor how Congress shall accomplish this or 
that end, which they have a right to accomplish. The Courts are dumb 
in this matter. 

I think there may be a limitation upon the appropriateness of this 
Act of Congress, viz : it shall not contravene any portions of the Constitu- 
tion. But have they done so in protecting the citizen in rights granted 
to him by the Constitution of the United States? We say, in this Act of 
Congress, that if two or more persons shall combine, or conspire together, 
with intent to injure, &c. — with intent to prevent the free exercise and en- 
joyment of any right or privilege granted and secured to him by the 
Constitution and the laws of the United States — they shall be punished. 
This security is granted to him by the Constitution of the United States 
in terms, and the fourteenth amendment authorizes Congress to protect 
the citizen in the exercise of this riglit, as against the State, by appropri- 
ate legislation. 

If the Court please, we do not desire to do any more than state the propo- 
sition. I ain aware that this is a new law ; I am aware that there is much 
discussion in the country about it ; and I am aware that your Honors 
have the solemn duty. of explaining and expounding it ; and, it seems to 
me, you ought to do so in the light of the Constitution as it was given 
to us in early days, and as interpi'eted in the history of the country, and 
in the light of recent events, and with reference to the purpose vrhich 
Congress, and the people of the United States, had in passing the four- 
teenth and fifteenth amendments. All of those things your Honors 
will take notice of, and endeavor to expound the laws and the Con- 
stitution as they were intended to be by the people and the Congress of 



64 

the United StatesT Now, in refex-ence to the fifteenth ame^idment, it has 
been said here that it does not secure the right to vote — does not secui-e 
any body in the right to vote. Why, if the Court please, we say it is 
secured to them in some particulars, and, sufficiently to say, in tlie lan- 
guage of this Act, they are secured in the right to vote by the fifteenth 
amendment. There is a very recent authority upon this question, and I 
regret exceedingly that I have not the full report of the case. It is the 
case of the United States against John Maul, Jr., and others. It arose 
in the Court for the Southern District of Alabama. 

The note which I have of the decision is found in Vol. 5 American 
Law Review, p. 752. In this case it was held that the words " any right 
or privilege secured by the Constitution " to the citizen, iu the Act of 
May 31, 1870, Section 6, comprehended the right to peaceably assemble 
and of free speech. This is, substantially, the position, if the Court 
please, that I am insisting upon. 

It may not be, by its power in this case, that a State may deny the 
equal protection of its laws, but, also, by Executive inaction alone. Now, 
if the Court please, the right to vote is one of the privileges aud immuni- 
ties which belong to a citizen of the United States, without distinction 
of race, color or previous condition of servitude, and neither the United 
States nor any State shall deny to any citizen that right. In the fifth 
Section of this Act it is provided that " if any person shall prevent, hin- 
der, control or intimidate, or shall attempt to control, hinder or in- 
timidate, any person from exercising, or in exercising, the right 
of suffrage, to whom the right of suffrage is secured or guaran- 
teed by the fifteenth amendment to the Constitution of the United 
States," &c., &c. 

That is the chosen language of the Act of Congresss. That is the 
legi?lative construction put upon this fifteenth amendment. It may be 
that is liable to cavil — liable to this objection : that it does not secure 
any individual in the right of suffrage except against discrimination on 
the part of the State. It is possible that the State might deprive him of 
the right of suffrage because he was not five feet high. They might say 
that all citizens who are not five feet high shall not be allowed to vote. 
I would not undertake to say whether such an Act as that would stand 
or not. But I do say this, that, in these particulars against discrimina- 
tion on account of race, color or previous condition of servitude, the 
right of the citizen of the United States is secured. 

If the Court please, I desire to say but one word about this crime of 
felony, as it is called, alleged in connection with the third count. My 
views are expressed in a very few words. It is simply said, in the seventh 
Section, of the Act of Congress, that if, in the act of committing this 
conspiracy, any other offense is committed against the laws of the State, 



65 

then the measure of puuicslimcnt wliieli the State gives to that other 
offense committed shall be iuflieted for this conspiracy. 

It is simply a measure of punishment — nothing more, nothing less. It 
is not alleged as a distinct offense, but simply to inform the Court how 
this man should be punished for committing this conspiracy. Congress 
has chosen to inform the Court in that way of the punishment to be in- 
flicted. Congress has a right to measure the punishment in any way it 
pleases, and it has adopted that mode. I admit it is inconvenient — ex- 
cessively so. I would very much prefer that Congress had done it differ- 
ently ; but what has the Court to do with that ? We have, and perhaps 
my friends on the other side may be afflicted with the notion of "my 
policy." But it is not for us to talk about it in connection with these 
cases. The policy of the Act of Congress is clear. Now, suppose instead 
of saying "any other crime or misdemeanor," the Act had said that "if 
in the act of committing this offense, this person shall do a particular 
act — for instance, that he shall knock down, drag out, beat and wound 
any individual in this conspiracy — he shall be punished accordingly. We 
would have had to allege, for the information of the Court, that such facts 
occurred ; that, in committing this conspiracy, these defendants did knock 
down, drag out, &c. Not that the Court is to punish for dragging out ; 
not that the Court is to punish for breaking and entering, Vv'ith intent to 
commit a felony, but that the Court may be informed, that the fticts, which 
are the measure of the punishment, may appear. We must allege that 
those things were done, and it must appear on record, or else the judg- 
ment of the Court cannot be entered. It is not, as has been well said by 
my associate, that this Court proposes to take cognizance of the crime of 
burglary, or murder, or rape, or arson, except in so far as to ascer- 
tain the measure of punishment which is to be meted out to these de- 
fendants. 

It was objected that we alleged the o.ffense against the peace and 
dignity of the State of South Carolina. Why, if the Court please, we 
had to allege an offense which would be a burglary, a rape, an arson or a 
murder, under the laws of South Cai'olina. Why ? That the Court 
might be informed, and that the record may show such a state of facts 
existed, in connection with this crime, as to justify the sentence of the 
Court. I do not like the policy of the Act. I do not like the method. 
It has given me an exceedingly great amount of annoyance; but still it 
is there, and I am here to enforce the policy of the law, not " my 
policy." 

Again: If this defendant is found guilty under this third count, it will no< 

be pretended that he cannot be again indicted and punished for burglary ? 

Can he plead a former indictment and acquittal? Certainly not — not at 

all. . If we looked into this record we would see this — that it was merely 

5 ^ 



66 

a state of facts alleged in connection with another offense, and he was 
punished for another offense, not for the buru'lary. 

One word more. Much complaint is indulged in on the other side 
against the Act of 1871, because we have alleged, in the language of the 
statute, that these parties did combine and conspire to deprive Amzi 
Rainey of the equal protection of the laws. Well, now, equal protection 
of the laws are very comprehensive terms, and exceedingly indefinite ; so 
the Court said, in the case that I cited, in 2d ]?*Iason, that the words 
"persons of color" were extremely indefinite, and it was claimed in that 
case as it is claimed in this, that they ought to have been defined. But 
the Court said: "This is the chosen language of the statute, and it is 
not for the indictment to avoid or explain it." I regret exceedingly that 
Congress should — and I am frank to admit it — that Congress should use 
those indefinite terms, and leave the Court, the attorney, and the people, 
to grope a,round to find out what they mean. But it is the policy of Con- 
gress, not " my policy." The language is there, and your Honors must 
indulge yourselves in explaining what it means. 

I shall insist, in this case, that if we find that these parties have com- 
bined and conspired to de2:)rive Amzi Rainey of his rights, guaranteed and 
secured to him by the Bill of Rights, by the Constitution of the United 
States, and especially by the laws of the United States, that they come 
vrithin the meaning of the statute. Congress has chosen to protect citizens 
under the fourteenth and fifteenth amendments in that way. The lan- 
guage of the fourteenth amendment is, " nor any State deprive any citizen 
of the equal protection of the laws." Well, what does the fourteenth 
amendment mean? Is Congress going to pass an Act to explain those 
words? I think one of the distinguished counsel on the other side voted 
for that amendment, and did an exceedingly wise thing in doing so ; but 
I would like to have known then, and would like to know now, what he 
i^ieant by it. He will admit, I have no doubt, that Congress cannot ex- 
plain what those words mean. It must be done by the Court. Congress 
has enacted what it calls " appropriate legislation," and of its appropriate- 
ness Congress ought to judge. That appropriate legislation is to punish 
State oflicers, legislators, judges, sheriffs, if combined in depriving any 
citizen of the equal protection of the laws. They can be punished under 
that Act ; the language will comprehend the svhole of them. I think it 
secures the citizen in all the rights which the Constitution grants and 
secures to a citizen against any combination of persons that undertakes 
to deprive me of those rights. It is not for me to say whether that four- 
teenth amendment was wise or the Act of Congress was wise. I have 
nothing to do with it. What I desire is to punish persons for violating 
it. I have drawn the indictment accordingly ; I have set out an offense, 
and I am io prove something that comes Avithin the language of the 



67 

statute, aud when that proof is heard it will be for the Court to say 
whether that conspiracy is an offense comprehenaed by the terms " privi- 
leges and immunities under the law^ of the United States." 

At the conclusion of Mr. Corbin's remarks, aud upon the request of 
Mr. Johnson, the Court adjourned until the 6lh, at 10 o'clock A. M. 



Columbia, December 6, 1871. 
Mr. Corbin submitted a point omitted in his argument yesterday, as 
follows : 

3Ia]/ it please tJie Court : 

By consent of counsel on the other side, I desire to submit one author- 
ity, and, also, to make an additional remark, which I intended to make, 
but neglected to" do so in the argument on yesterday. The remark, if 
the Court please, is in reference to the objection that we have not stated 
in the indictment the election at which it was intended to restrain Arazi 
Rainey and others from voting. 

It was also remarked by the counsel who opened the case for this mo- 
tion, that the right of voting consisted in the exercise of it, at the time 
and place prescribed by law, and that the interference must bo at that 
time and place. We reply to this objection : 

First. That by the statute law of this State, by the Constitution of this 
State, it is provided that the general 'elections in this State shall be held 
pursuant to the Constitution thereof I read, if the Court please, from 
the statute law of the State, 1870 : That general elections in this State 
shall be held pursuant to the Constitution thereof, on the third Wednes- 
day of October, 1870, and forever thereafter, on the same day in every 
second year. It is also a further provision of the statute law of this 
State, and of the Constitution, that elections ^o fill vacancies in the Gen- 
eral Assembly may be held at any time that the President of the Senate 
shall declare, for that body, and the Speaker of the House of Representa- 
tives, for members of that body. And the election for members of Con- 
gress, also, may be held at any time, to fill a vacancy, upon the order of 
the Governor. The election of members of Congress from this State, the 
regular election, took place at the time aud place v;hich I have just in- 
dicated. 

Now, we say, if the Court please, that the right, under a representative 
government, to vote, is a continuing right — one that exists at all times, 
and is liable to be exercised at any and all times, as occasion requires. 
It is the source of power. It is a right that exists in citizens ; aud, to in- 
timidate a person to prevent him from voting at any time between elec- 



68 

tions, is a cout-piracy. A conspiracy that is to contiaue, aud with ioteut 
to continue, either to elections that are prescribed by law — the regular 
elections? as well as the special elections — is a conspiracy under the Act ; 
and Lhe right to vote is a right whach the United Staies intended to pro- 
tect at all times, because it is liable to be exercised at any and all times. 
Now, what is said ? We have not, in our counts, stated what election is 
referred to, or stated that Amzi Raiaey did exercise that right. The 
presumption is, that he did exercise that right. The count says : Be- 
cause he did exercise that right, without reference to the elections fixed 
by law. In reference, if the Court please, to what is appropriate legis- 
iatiun, we desire to call the attention of the Court to the case of McCul- 
louo-li against the State of Maryland, 4 Wheaton, p. 421. The Court is 
discussing appropriate legislation made by Congress. The opinion of 
the Court was delivered by Chief Justice Marshall, who says : " We ad- 
rait, a,3 all must admit, that the powers of the Government are limited, 
and that its limits are not to be transcended. But we think the sound 
construction of the Constitution must allow to the National Legislature 
that discretion, with respect to the means by Avhich the powers it confers 
are to be cai-ried into execution, which will enable that body to perform 
the hip'li duties assigned to it in the manner most beneficial to the people. 
Let the end be legitimate — let it bo within the scope of the Constitution — 
and all means, which are appropriate, Avhich are plainly adapted to 
that end, whicli are not prohibited, but consistent with the letter and 
spirit of the Constitution, are constitutional. If the Court please, there 
are several other authorities to the same effect. 

ARGUMENT OF THE HOX. REVERDY JOHNSOX. 

May it please your Honors : 

I shall best show my sense of the indulgence which the Court was kind 
enough to grant yesterday, by proceeding to discuss, at once, such of the 
questions which arise under this motion, as I intend to consider. 

It is not my purpose to examine, in detail, the objections which have 
been made to the indictment. They are set forth with sufficient fullness 
in the motion itself, and they have been so ably enforced by my colleague, 
that I shall deem it unnecessary to say anything further in their support, 
except to call your Honors' attention, before I close, to some general 
reflections, applicable to criminal pleading. My principal object — and I 
ask the kindness of the Court in listening to me with all the patience 
which belongs to such a tribunal — wi I be to examine t'le fundamental 
questions which the niotiou presents ; those questions which involve the 
true interpretation of the Constitution of the United States, and which, 
consequently, involve the rights of the States of which the United Statef-- 
is composed. 



69 

Before I take up, may it please the Couri:, the several anieijdmtJits 
upon which this indictment is founded, and examine them, each sepa- 
rately, and then examine them all, collectively, I deem it proper to call 
to the Court's attention some principles about which there has never been 
any dispute, unless, if disputed now, it will be for the first time. 

At the termination of the Revolution, each of the colonies became a 
separate and independent State, clothed with all the, powers which belong 
to sovereignty, and not responsible to any other government. They had 
severed their connection with the Government of Great Britain, and they 
declared themselves, in that act of severance, that they designed to be forever 
separate and independent States. The exigencies of the revolution de- 
manded that there should be some bond of union, so as to preserve a 
united front against the arms of Great Britain. Separate and individual 
exertion would have been futile; joint, consolidated action was demanded 
by the exigencies of the moment, and, with a view to attain such power, 
they adopted, at an early period, the articles of confederation. Upon 
their face, the Government — if Government it could be called — which was 
constituted by force of those articles, was but a league between the Stater, 
respectively, which either of them could abandon at pleasure, compelled, 
only, if the rest of the States should think proper to resort to tl»at course, 
to be forced back by war — compelled by war to observe the league. ' 

It has since become evident, as your Honors know, that a Government 
of that description was wholly inadequate to accomplish the end |br 
.which our ftithers fought, and in Avhich they triumphed. They desired 
to make a nation, and with that view, and in order to guard against the 
consequences which were then apparent, of remaining in the confederation, 
they made and devised the Constitution of the United States. The men 
of that day, as wise and patriotic as any that Heaven has ever given, 
saw that there were danger;^ to be apprehended from any Goverument 
which they might devise. The dangers were two-fold ; the dangers aris- 
ing from the centrifugal force necessarily incident to a Government com- 
posed of States, and the dangers incident to a centripetal force incident 
to a government in which all the power devolved upon the General Gov- 
ernment. They designed to guard more especially against, and tliey ap- 
prehended more danger, from the last than the first. They had seen, and 
seen by their experience as colonies, that the most dangerous government 
in the world is a centralized and consolidated government. 

That convention was composed of the best men from the several colo- 
nies, which then had become independent States. Each was anxious to 
preserve the peace within the State, so far as it could be done consistent 
with the national security, and, therefore, each desired and thought he 
accomplished the end to give to the Government of the United States no 
powers which were not necessarily conferred, in order to enable us to be- 



70 

come a nation. All the domestic powers wliieli belonged to tlie States be- 
fore, were intended to be left to the States forever, until changed by con- 
stitutional amendment. No powers were delegated except such as were 
necessary to enable us to deal with foreign nations, and to accomplish 
ends, as between the States themselves, that could not be accomplished by 
means of individual State power. The States, under the articles of con- 
federation, bad, by their various conflicting regulations, so hampered com- 
merce that conflicts were constantly occurring. They had passed laws 
for tbe payment of debts by illegal currency — a currency called by them 
legal, but which had no value in point of fact. They had disregarded con- 
tracts by passing laws violative of their obligations. These powers it was 
intended to divest them of; and these they are divested of. The regula- 
tion of commerce is entrusted exclusively to the United States, in its legis- 
lative department. A restriction upon the States expressed that they 
should make nothing but coin a tender in payment of debts, and should 
pass no law impairing tbe obligation of contracts; and, with a view to 
make these provisions operative at all times, and to secure the benefits, 
which they were intended to attain, they constituted^and it was the 
crowning piece of their work — a judiciary of the United States, and 
clothed it with all the powers necessary to give effect to every one of the 
l^OAvers of Congress, and to cause the States to observe all the restrictions 
to v;hich the States were subject by the Constitution. 

But there is one thing, may it please your Honors, that they did not 
do ; there is one. thing, my friends will permit me to say, that if any man 
in that Conventiou had proposed, he would hardly have been listened to 
with respect ; and that was to place the franchise under the control of 
the Government of the United States. 

What they have done shows that they intended no such thing as that. 
The first Article of the Constitution, which creates the legislative depart- 
ment of the Government, and provides for the manner in which members 
of the House of Re2:)resentatives and the Senate are to be elected, says, in 
in so many words, that in the election of members of the House, and in 
the election of a President of the United States, or of Electors of the 
President of the United States, the qualifications of the voter are not to 
be such as Cwngress, from time to time, may provide, but are to be at 
once and forever, in the absence of constitutional amendments in -the fu- 
ture, such as is prescribed for the election of members of the most nu- 
merous branch of the State Legislature ; aye, of each State Legislature, 
may it please your Honors. They can change, under that provision, the 
regulation of the franchise from time to'time, as in their wisdon they may 
think proper ; and that, as we know, has been done from the beginning 
of the Government even to the present day, or, at least, until these laws 
were passed. In some States a property qualification was demanded ; in 



71 

some States the age was difFereut from the age px*escribed in others; in 
some States only a citizen, naturalized or native, could vote; in some 
States he who came to the United States, intending to remain here, was 
made a qualified voter. 

Nobody ever dreamed that it was in the power of the United States to 
change or abolish any of these regulations. And why not ? Because 
suffrage was deemed vital to the existence of the States ; because a uni- 
formity of sufiVage, in the election of the House, and in the election of 
State officials, was supposed to be absolutely necessary, iu order to accom- 
plish the ends that they had iu view. 

Now, may it please your Honors, the learned District Attorney need 
not have c|uoted the case of McCullough, in Maryland, to establish the 
proposition upon which he relies. The only question is, whether this 
case is one which falls within the scope of^^that case. 

The Constitution of the United States, as you will remember, in the 
eighth Section of the first Article, gives to Congress the power to pass all 
laws necessary and appropriate to carry into effect the granted powers. 
The clause was not intended to enlarge the grants before made; it was 
not designed to be of itself a grant ; its whole purpose was to make it 
clear, beyond a doubt, if any doubt could have exisited in the absence of 
such a clause, that where Congress is clothed with any particular power, 
they are necessarily clothed with the means of carrying that power into 
execution. Chief Justice Marshall, Mr. Story, and every commentator 
upon the law, and every Judge who has been called upon to consider the 
effect of that provision, say that the law would have been the same if the 
provision had never found a place in the Constitution. 

Now, may it please your Honors, the question meets us at the threshold, 
when we came to consider these amendments: What other power is to 
be found, in any part of either of the amendments, which entitles Con- 
gress to regulate suffrage ? 

A word as to each. The thirteenth amendment does nothing butabol- ' 
ish slavery. It removes from the limbs of the slave the shackles by 
which he had formerly been controlled. It makes him a freeman, but 
nothing more. Every right, therefore, belonging to a freeman, as a free- 
man, is his — literally his. 

Whether the provision abolishing slavery was wise or not, may it please 
your Honors, is a question which I do not now propose to discuss. At 
the time that amendment was, passed I was one of the representatives 
of my State, in the Senate of the United States.- I believed then — and I 
have never had reason to alter that opinion since — that the true policy, to 
say nothing of those demands which humanity requires, is that there shall 
not be, in a Government like ours, human slavery ; and the amendment, 



72 - 

therefore — had ray siij^port. How it will turn out — how it has turned 
out — is a matter upon which differences of opinion exist. 

At that time, to give the emancipated shxve the right of suffrage, with- 
out any previous education, was not dreamed of by any man in the Con- 
gress of the United States, so far as I Avas advised. That was a work 
of after consideration. ^Yhen the people of the Congress had become ed- 
ucated to go farther, they gave them the right to vote. It is not for me 
to say, may it please your Honors, that in this they erred ; but nobody, 
I suppose, will be bold enough to say that there was not some danger in 
extending the suffrage to a people so wholly uneducated and necessarily 
ignorant as Avere the slaves, for the most part, of the South. In some of 
the States they outnumbered the whites. In some of the States the leg- 
islative, the executive, and the judicial departments of the government, 
where they are filled by election, are in the hands ol* that class. That it 
may work well, no man more desires than I do. That it will work well, 
I more than doubt. If they be equal to the whites ; if God has endowed 
them with the same intellectual faculties which belong to the whites — and 
I believe, for the most part, he has — then education may place them upon 
the same level, and the destinies of the Republic, so far as they depend 
upon the State, may be safe in their hands. But, all that that thirteenth 
amendment designed was to make the slave a freeman, and to give him. 
no right except such rights as belong to that condition. 

NoAV, what is the next ? The fourt^nth amendment. 

Not only was it decided, in the famous case of Dred Scott, that an Afri- 
can, or a descendant of an African, (whether slave or free,) born in a 
condition of servitude or afterwards emancipated, was not, within the 
meaning of the judiciary acts of the United States, a citizen of the United 
States. 

The same decision had been made in Pennsylvania, the land of Frank- 
lin and of Penn. Their Constitution was, as far as the particular objec- 
tion was concerned, identical with that of the Constitution of the United 
States, and the Supreme Court of that State, too. decided that, although 
in some sense a citizen, he Avas not a citizen of the United States, within 
the true meaning of the judiciary clause of the Constitution. 

"Whether that decision, either State or Federal, is correct, may it please 
your Honors, it is now useless to enquire. The objection has now been 
removed by the fourteenth amendment, the first Sectioi of which pro- 
vide?, that every citizen born in the United States, or naturalized, shall 
be forever a citizen of the- United States, and of the State where he may 
have been born, or where he may have i-esided. He can now come, 
therefore, into the Courts of the United States, under the judicial clause, 
because he is now a citizen by this law. That right the clause gives him, 
and no other. It gives him that right, not by direct provision, but be- 



73 

cause emancipation places bimiu a condition to claim the benefit of the 
provision, under the Constitution of the United States, extended by the 
judiciary clause which authorizes a citizen of the United States, under 
certain circumstances, to sue in the Courts of the United States. 

The fourth provision in that amendment does not give the right of 
suffrage. Congress had not been so far educated, at that time, as to in- 
terfere with the right in the States. It sought to accomplish the end by 
what may be called a persuasive measure. It provided that if, in any 
State, there should be any distinction in the right of suffrage, on account 
of color, or race, or other cause, the Representatives in Congress should 
be diminished in the px'oportion that the number excluded might bear to 
the whole number of voters. It does not give them the right to vote ; on 
the contrary, it presumes, by that very provision, that the States had a 
right to exclude them from the right to vote. 

The very provision, as your Honors see, assumes — concedes, to speak 
more properly — that the right of suffrage depends upon the laws of the 
State alone. Not only does it not change those portions of the Constitu- 
tion of the United States which bear upon the subject at all, but leaves 
them in force, admits that they have a legal force, and that the only 
mode by which the States could be induced to extend the suffrage, was 
by telling them that if they did not, their representation in the Govern- 
ment of the United States should be proportionately decreased. It is un- 
necessary to refer to the other Sections, so far as the point I have in view 
is concerned. 

Now the Court, I am sure, will see that the fourteenth amendment does 
not interfere at all with the right of suffrage. The States, over that 
right, are sovereign, as the Constitution, in its original frame, left them. 
The States, in relation to that subject, were sovereign before the Constitu- 
tion was adopted ; and in the Constitution itself, that portion of their sov- 
ereignty is not only not taken away, but it is recognized by the very terms 
of the second Section of the first Article. 

The fourteenth amendment has nothing to do with the right to vote, 
except in the way which I have stated. 

Now, what does the fifteenth do? I will ask my colleague to read it. 
I have forgotten the exact language. 

Mr. Stanberry (reading.) " The right of citizens of the United States 
to vote shall not be denied or abridged by the United States, or by any 
State, on account of race, color or previous condition of servitude." 

Mr. Johnson, (resuming). That is the first Section. The right to vote, 
whatever that right may be, shall not be diminished on account of race 
or color, or antecedent state of servitude ; that is all. Does it profess to 
give a right, or does it deal with some existing right? And if it deals 
with any existing right, what is the existing right to which it refers ? I 



74 

have endeavored to show your Honors that the right of suffrage existing, 
at the time that the amendment was adopted, was to be found in the laws 
of the States, and all that the amendment does, so far as the right is con- 
cerned, is to declare that there shall be no distinction on account of race, 
color or previous condition of servitude. No grant of any right, but a 
restriction upon the power of 'the States to interfere with some existing 
rights, and nothing else. And you will, therefore, have to go to the 
Constitution as it stood when the fifteenth amendment was adopted, in 
order to ascertain thfe right, and upon what the right to vote existed. It 
depended for its exercise upon the laws of the States, as such, and not 
upon any principle to be found in the Constituion of the United States, 
or any law passed by Congress before that fifteenth amendment was 
adopted. To construe that amendment as giving a right would be to do 
a great injustice to the wisdom of Congress — to the wisdom of the Presi- 
dent — to the wisdom of the people of the United States. 

Our brothers on the other side, who so ably represent the Government, 
and whose speeches are as admirable as could have been made on that 
side of the case — I am obliged to qualify it by the way — insist upon it 
that in that amendment the people of the United States, by adopting it, 
have agreed that the Congress of the United States should regulate the 
right of suffrage. Well, now, the first question that suggests itself to any 
reflecting mind is, if they intended to, why didn't they say so? If their 
purpose was to enlarge, in relation to the right of suffrage, the power of 
the United States, and to clothe the Congress of the United States with 
the whole authority to regulate it, why, in the name of common sense, 
didn't they say so ? I don't know what some individual of Congress, in 
proposing the amendment, may have designed ; but I think I know this, 
that if that amendment had contained the words w^hich I have supposed — 
words clearly and urambiguously taking from the States the right to reg- 
ulate the suffrage — it never would have been adopted by the people of the 
United States. Their ancestors exhibited their attachment to State sover- 
eignty in relation to the suffrage. Their ancestors in the Convention, as 
well as in the several Conventions of the States, by which the Constitu- 
tion was adopted, exhibited their attachment to the State power of regu- 
lating the suffrage. They not only did not give the right to regulate it 
to the Congress of the United States, but they excluded the Congress, by 
words too clearly expressed to be misunderstood, from the exercise of a 
right to regulate it. They, may it please your Honors, were embarked 
in an unprecedented enterprise, not supported by any previous example — 
new to the political world. The Government constituted was a Govern- 
ment of the States, each supreme, so far as the others were concerned. 
That supremacy they did not intend to impair, except so far as they 
might think uec 'ssary to attain those objects which could not be accom- 



70 

2)Iished by means of mere State power ; and they believed that it was not 
only not necessary to clothe the Congress of the United States with 
the powder to regulate the snffrage, bnt that it was necessary to clothe the 
Congress of the United States with the power to regulate the suffrage ; 
but'that it was necessary to keep the power to regulate the suffrage ex- 
clusively within the States. In other words, may it please your Honors, 
as far as the House of Representatives and the President of the United 
States are concerned, or Electors, they wished that there should be no 
conflict — contrariety — in relation to the right of suffrage in the election 
of officers of that description and between the election of the most nu- 
merous branch of the State Legislatures. They wanted the Congress to 
represent the people who are represented in the most numerous branch 
in the State Legislature, but nothing else. A different provision would 
have been inconsistent with their purpose. It would have placed the tw^o 
Governments upon a different foundation. The State would be repre- 
sented by one class of citizens, and the United States by another ; and 
it was the design to guard against it ; and they did, as I wull no doubt 
show your Honors, effectually guard against it. 

Now, when the fifteenth amendment was adopted, what .was its opera- 
tion ? What is supposed to have been the purpose of that amendment ? 
How was it understood by the people of the several States, by whom it 
was subsequently ratified ? Did they mean to change the whole char- 
acter of the Government, as respects the exercise of the right of suf- 
frage ? Did they presume to call in question the wisdom and foresight 
of their ancestry ? Did they assmbe to be wiser than the great and 
pure men who brought the Government of the United States into ex- 
istence, and for years provided for an administration, consistently with 
all the limitations to be found in the Constitution ? Or, did they only 
mean, ^ may it please your Honors, to guard a particular class of pei'- 
sons, who, by virtue of the thirteenth amendment had become freemen, 
from being placed in any other condition, in relation to the election of 
Representatives to the Congress of the United States, than that of white 
men ? Not to give a right, but to deal with a right a ^rmrfy granted, what- 
ever that might be ; and to deprive the State authorities, by legislation, 
of the power to interfere with a right already existing. 

Now, if that be all, may it please your Honors, how can our learned 
brothers derive any aid in support of their view of the effect of the 
amendment, because of the next Section in it — that which gives to the 
Congress of the United States the power, by appropriate legislation, to 
accomplish the ends of that amendment ? The end is, that an existing 
right shall not be interfered w'ith, by the mode stated in that amend- 
ment — that is all. 

What, then, can Congress do, under the authority which gives them 



76 

the power, by appropriate legislation, to carry into effect that amend- 
ment ? Does that extend the power ? Does that enlarge the amend- 
ment ? Does that give, or profess to give, a right not given by the 
antecedent clause of the amendment ? Certainly not. "What did it do ? 
It only did, with reference to that amendment, what the eighth Section 
of the first Article of the Constitution of the Uniied States, as originally 
framed, did, in relation to all the powers vested in the General Govern- 
ment ; that is to say, it gave to them the power, by legislation, to enforce 
that ameudment — that is all. To provide that that amendment should 
stand unharmed — that is all. Then, you have to go back to the amend- 
ment itself, in order to ascertain its purpose ; and if, as I think your 
Honors will conclude, it w^as not the purpose of that amendment to 
grant a right to vote, but to protect some other right, existing under the 
laws of the State, all that Congress can do, under the latter part of the 
amendment, is, by legislation, to provide that the right so secured shall 
not be interfered with in tlie way pointed out in the amendment. 

Now, if I am right, may it please your Honors, in this view of the 
several amendments, the next question to which I invite the Court's 
attention is : Under what power was Congress authorized to pass the 
Act, either of Mdy, 1870, or of April, 1871? The learned counsel for 
the Government have not been able to find it in the original Constitu- 
tion. The Act of 1871 professes to have been passed under the autho- 
rity of the fourteenth amendment. The Act of 1870 is passed under 
some indefinite authority, which they have not undertaken to point out. 
But, iu order to justify the legislati^^u, your Honors must be satisfied 
that the Constitution of the United States gave to Congress the authority 
to pass the two Acts. 

So far as this Section of the Act assumes that either of the amend- 
ments gives the right of suffrage, the provisions are void, for want of 
authority, for reasons which I have already urged before your Honors. 
So far as it relates to the authority to pass laws regulating the right of 
suffrage in States for the election of State officials, I have a word further 
to say. 

If anything was clear, at the time that amendment was adopted, it 
"was that, in the election of State officials — legislative or judicial — if they 
thouglit proper to make judicial officers elective — a policy more honored, 
as I thiuk, in the breach than in the observance — nobody supposed, for 
a moment, that Congress had any right to interfere. The time, place 
and manner, or the time and manner of electing Representatives, or 
Electors of President and Vice-President, in the provisions of the Cons.ti- 
tution itself, before these amendments were adopted, is left to Congress. 
These were officers of the General Government, and, in the mode of 



77 

electing them, Congress may exercise, under certain • limitations, the 
power to regulate it. 

Where did they get authority to take from tlie States the right to 
regulate their own election of their own State officials ? It is true, may 
it please your Honors, that the language of the amendment applies to 
States, as well as to Congress ; but you are not to construe that amend- 
ment by itself, without regard to the Constitution, as it stood at the time 
it was adopted. You are not to tear the Constitution and place upon 
part of it a meaning. which it may bear, considered by itself, and without 
refereuce to the context. You are to consider it v.'ith refareuce to the 
Constitution itself, in every provision there to be found, at the time 
those amendments were adopted. Do you suppose, may it please your 
Honors — I put the same question now that I have done often, in relation 
to the amendment — do you suppose that, if it had been expressly stated 
in that amendment that the States should not have the right to I'cgulate 
■' their own elections, as far as the right of suffrage was concerned, that it 
would have been adopted ? 

If, under that provision. Congress could pass the laws which are now 
before you, they could pass any other law in relation to the suffrage ; 
they could prescribe the age when the right is to be exercised ; they 
could prescribe the qualifications in other respects which are to 
exist, in order to give the right to exercise the privilege; they might 
enlarge or diminish the suffrage ; they could enlarge it, by making i^ 
independent of sex — giving it to women — in my opinion, not created for 
the purpose of joining in any of those questions which agitate men and 
excite their passions, but created for a holier and a better purpose. If 
they cannot do that, why cannot they do it ? Only because, by virtue of 
that fifteenth amendment, the subject of suffrage, in general, is not sub- 
mitted to the authority of Congress. But they have gone further. 

I am too old in the profession to attempt to impress upon the Court 
any opinion, in relation to constitutional questions, which I do not sin- 
cerely entertain ; and I know, may it please your Honors, that the 
Court will do me the justice to believe — and I am sure the presiding 
Judge does — that the defense of a prisoner, or of parties who have 
placed their defense in the hands of my friend and myself, are as 
nothing, compared to the preservation of the Constitution upon which 
our liberties rest. The individual may be incarcerated ; he may ex- 
piate his alleged crimes with his life ; he passes off, and the 2)ub- 
lic are not injured. But, if he is punished ; if the Government of the 
United States seek to punish him by means of laws they have no consti- 
tutional power to pass, then the Constitution is wounded, through the 
sides of the prisoner, and the cause of freedom itself is in danger. IMan 
is but a creature of the moment — an atom which time blows away ; but 



78 

the cause of coiistitutional freedom should never be put in peril, for upon 
its existence, upon its enlargement, rests the hopes, rests the interests, 
rests the freedom of the people of the United States. 

Your Honors, therefore, when you are called to pass judgment upon 
these men, are also called to pass judgment upon the Constitution of the 
United States. Shall it be observed ? Shall Congress be permitted, for 
any purpose — however good, morally speaking, the purpose may be — to 
violate the restrictions which the Constitution throws around it? 

Now, what have they done, may it please your Honors, in the seventh 
Section of the Act ? Ta that I now invite your attention. I mean the 
Act of 1870, upon which the first eight counts of the indictment have 
been framed. ]\ly brother, the District Attorney — and I think he 
said his assistant, the Attorney General, was in the same perplexity — 
told you yesterday that this law gave him great embarrassment and 
annoyance, and he did not know how to draw an indictment under 
it, with any certainty that the indictment would stand. If I did not be- 
lieve it upon the authority of his own statement, I should have known it 
would ; for, however skillful — and they both proved themselves to bo 
eminently skillful — they might be in the science of criminal pleading, I 
can very well imagine that, when they met in their private office to 
frame an indictment under this Act, the first question which they pro- 
posed to each other was, how in the name of wonder can it be done ? It 
is a puzzler ? The Act was probably drawn by some member of Con- 
gress, who did not know what he was about. Occasionally — very seldom, 
however — there are such men in Congress. 

Now, what has the draughtsman of that Bill provided ? That if, in 
the act of violating the law itself, any felony shall be committed, then 
the punishment, which, independent of felony, the statute prescribes for 
the mere violation of the statute, shall be the punishment which the laws 
of the State impose upon the felony which may be committed. Both my 
brotliers have said, and they can say nothing else, that that provision does 
not give the Courts of the United States the right to try for murder or 
burglary, or any other felony known to the laws of the State of South 
Carolina, but that those felonies are referred to in the seventh Section 
merely for the purpose of measuring the punishment which is to be in- 
flicted upon him who violates that Act. They both said, in clear terms, 
that over the laws of South Carolina, and over crimes perpetrated in vio- 
lation of those laws, the United States have no jurisdiction. Murder, as 
far as tlieir power is concerned, may go unpunished. Burglary, as far 
as their power is concerned, may ei|ually go unpunished. They do not 
try him, therefore, for murder, do not try him for burglary, but would 
punish liim for violating the Section, because he has committed murder 
or burglary or some other offense. 



79 

Let us examine that a momeut. What did they think when they 
drew the indictment — the third count, I think it is? Did they conckide 
that count, after stating the facts Avhich it contains, with words to the 
effect that the offense was committed against the peace and dignity and 
Government of the United States ? No, may it please your Honors, 
they could not have said so, for, by their own admission, the United 
States had no authority to assume jurisdiction over such offenses. But 
they wanted, notwithstanding, to try and to convict. Was it their pur- 
pose, in trying and convicting, merely to punish the party because he 
also violated the Act in other particulars? 

'Now, first, has the Congress of the United States any power to confer 
upon the judiciary of the United States the authority to try violations of 
the criminal law of a State ? No, it is conceded. What is it about to 
try under this third count ? First. The combination or conspiracy ; that 
is one of tlic offenses charged, and the perpetration of that conspiracy is 
said to be in violation of a law of the United States, contrary to the 
peace and dignity of the Government. Then they go on, under the Sec- 
tion, to say, that, in committing the offense which is thus prohibited bv 
the Constitution and laws of the United States — and I assume novv', for 
the purpose of the argument of this Section, that it is constitutional — that 
the parties committed some offense which the United States have a right 
to examine and punish; and yet, in framing their indictment, they stated, 
and they were obliged to state, that these parties, in the act of commit- 
ting the offense of combining against the privileges secured by the Act, 
committed the crime of burglary, an offense which is against the peace 
and Government and dignity of the State of South Carolina, not of the 
United States. In that particular, it is the law of South Carolina they 
have broken ; it is the peace and Government of South Carolina which 
have been disturbed. The peace and Government of the United States 
Avere involved in the first part of the charge; the peace and Government 
of South Carolina, alone, in the second clause of the count. 

Now, may it please your Honors, what will you have to do, if we go to 
trial? What will the prosecutor, under the direction of the Court, b§ 
compelled to do ? He will be compelled to give evidence — First. That 
the crime of burglary Avas committed. Secondly. That the laws of South 
Carolina punish that crime. Thirdly. That the laws of South Carolina 
do not permit punishment for that crime without trial and conA^ictiou. 
And that our brothers conceded. But they say that this trial and con- 
viction is merely for the purpose of ascertaining what judgment shall be 
pronounced against him who violates the law of the United States. The 
language of the Act, as your Honors AA'ill see, does not proA^de the felony 
to be punished as a felony committed for the A'ery purpose of efibctiug the 
conspiracy ; but that, in the act of accomplishing the conspiracy, this 



80 

felony — for aught that your Honors know, not an act of the conspiracy, 
but rising out of different motives — was committed, and they call upon 
your Honors to try them, not under the laws of the United States — not 
to punish under the laws of the United States — but under the laws of 
South Carolina, whose peace and Government were violated by the per- 
petration of the offense. Where did the Congress of the United States 
obtain any such power ? I may concede, as far as the argument is con- 
cerned, that, a.dmitting the Section, in other respects, to be constitutional, 
it Avould be in the power of Congress to say that if, for the purpose of 
violating the Section, the party murdered or committed the crime of 
Imrglary, he might be punished for the burglary or murder ; but that 
is not the case, as stated in the Section ; that is not the case, as stated 
in the indictment. 

The third count of the indictment charges the provision, and the Sec- 
tion is that if, in violating the Act of Congress, the party commits an- 
other felony, the violation of the Act must be punished as the laws of the 
State where that felony may be committed prescribe as the rule of pun- 
ishment for the perpetration of such an offense. 

Now, my brothers — if your Honors sustain this indictment — will say to 
the jury : "Gentlemen of the jury, we say, that on the day mentioned — 
the 1st of February, I believe it is — the parties now on trial committed 
the crime of burglary, and we mean to prove our indictment has de- 
scribed it in technical terms ; it is an indictment that would stand the test 
of examination, if the pai'ty had been charged with the same offense in a 
State Court; it is alleged to have been a felonious burglary, committed 
with a felonious intent. We will prove to you the burglary, as charged, 
and we ask you, gentlemen, when you render your verdict, to find, sub- 
stantially, two verdicts — ' Guilty of violating the Act of Congress,' and 
'guilty of having committed a crime punishable by the laws of South 
Carolina.' " 

How are your Honors to be advised, may it please the Court, 
of the facts to enable you to pass the judgment which the Sec- 
tion prescribes, if the Section is to stand ? How can you impose, 
how pass sentence upon these parties, by pronouncing judgment 
that they shall stand the penalties of the law of South Carolina against 
him Avho commits burglary, without that offense being first pre- 
sented by a grand jury, tried by a petit jury, and the party convicted 
upon the proof. " But," ray brothers say, "it is merely for the purpose 
of getting at the punishment. We have no jurisdiction to try the 
offense for any other purpose than to get at the punishment." Well, 
that is generally the case of all trials. All cases are tried — criminal 
cases — for the purpose of ascertaining what judgment is to be pro- 
nounced. But if your Honors cannot find in the Constitution of the 



81 

Uuited States any authority to the Congress to go into the domain of a 
State — assume jurisdiction over the domestic concerns of the State, come 
in and aid the jurisdiction of the State, stand in the phace of the judicial 
power of the State — you cannot sustain the third count. 

May it please your Honors, there are many illustrations which may 
readily be given to enforce this view of the subject ; but your Honors' 
own reflections will readily furnish them. 

I conclude, therefore, upon this point, by denying to the Congress of 
the United States the authority to punish at all any offense committed 
against the laws of the State of South Carolina. 

Now, I said, nuxy it pk-ase your Honors, in the beginning, that it was 
not my purpose to examine in detail the several objections to the indict- 
ment, but that there were some general observations which seemed to mo 
to be material. Certainty in criminal pleadings is necessary to the protec- 
tion of the citizen. If the Court were to assume that every man charged 
was guilty, there would be no necessity for trial. They might as well 
pass judgment at once. The object of the pleading, therefore, is to give 
him notice of v/hat offense he is charged with, that he may prepare for 
his defense; and so that he may use the judgment — if judgment shall be 
pronounced in his favor or against him — in bar of a subsequent prosecu- 
tion. The counsel maintained, I think, that a conviction of burglary in 
this Court would not divest the Courts of- South Carolina of the jurisdic- 
tion to try the defendant again. That, if the offense alleged to have 
been committed in the perpetration of the conspiracy was murder, and 
the man who is charged with having committed that capital offense is 
hung, the Courts of South Carolina could hang him again. If that is 
what they mean, why I deny it. They have not the lives of a cat. 

Now, may it please your Honors, both of the counsel upon the oUier 
side say that is the jurisdiction which you are now asked to assume. 
Then, a poor man who commits burglary may be punished twice — ^not 
punished for a violation of the Section, I beg your Honors to particu- 
larly note. I have endeavored to show you that he is punished be- 
cause he has committed a burglary. He has to be punished, first, by 
being confined in prison or the Penitentiary, as the laws of South Caro- 
lina may direct. He may suffer the whole extent of the penalty which 
the Court is authorized to impose ; then, after you have hijm there, under 
the laws of the United States, for the offense of burglary, committed against 
the laws of South Carolina, South Carolina may take him when he comes 
out, or may take him whilst he is in, try him again for the same offense, 
and impose upon him the same penalty. Is that justice? is that law? is 
that humanity ? God himself has almost written upon the tablet of the 
heart a protest against it. A man is not to be tried and punished twice 
for the same offense. The object of the law is fulfilled — the expiation of 
6 



82 

the crime is full and complete — when he is punished once ; yet our 
brothers say that he may be punished twice for the same offense. 

If they do not give up the argument for the punishment which your 
Honors, they say, are authorized to impose upon these parties ; if the 
jury should find them guilty of another felony, what can the prisoner 
say afterwards when he is called upon to answer for the same crime 
under an indictment in a State Court of South Carolina? Why, " you 
are not only trying me for the same offense, yoil not only propose to pun- 
ish me for the same offense, but you are trying me under the laws of 
South Carolina, and you are punishing me under authority of the laws 
of South Carolina. You allege that the offense which I have perpe- 
trated was against the peace, government and dignity of South Carolina." 
Can he not say, when he comes before a Court of South Carolina : " I 
have been tried for violating your laws ; I have been punished for vio- 
lating your laws?" The offense is at an end when the punishment is en- 
forced and the party outlives his imprisonment. Is he to come out and 
be subjected again to an indictment for having violated the laws of 
South Carolina, contrary to the peace, government and dignity of the 
State ? Can he not have a right to stand up, may it please your Honors, 
and say to the judiciary of South Carolina : " Try me not. Once I have 
been tried bv a Court which assumed jurisdiction to try me for violating 
your laws; once I have been convicted by the same tribunal ; once I 
have been punished to the whole extent of the laws of South Carolina. 
Do not subject me to another trial, another conviction, and another pun- 
ishment." 

There is no definition, except by general terras, of felonies which may 
be committed in the act of violating Section 7. The act charged in the 
indictment is the offense of burglary, which is a felony. But, suppose 
they have other indictments, which I understand they have — I think I 
have heard of them, in which they have, under a similar count, charged 
the parties who are the subjects of the prosecution with having, in the 
act of violating the statute of Congress, committed the crime of murder, 
punishable, I suppose, by the laws of South Carolina, with death. Now, 
what does the Constitution of the United States say ? Was it intended 
to repeal that protection thrown around the citizen for humane pur- 
poses — thrown around him because it would be disgraceful to the honor, 
glory and character of any Government if such a provision was not to 
be found either in the organic law or judiciary, or in the operation of the 
Court — the provision which says that no man should be put twice in 
jeopardy of his life ? Are you not, when you come to try a case which 
charges murder to have been committed, putting a man in jeopardy ? 
The law of South Carolina punishes murder with death. You say, if 
you convict a man of having committed an act which you have charged 



83 

him with violating, you are bound to impose upon him tlie penalty which 
the laws of South Carolina impose upon him for having committed such 
an offense — you hang him, and there is an end of it. Suppose he gets 
off; suppose he is acquitted ; can he not evoke the protection of the 
clause to which I have referred, if he is ever called upon to answer for 
the same offense in any Court of South Carolina, or any other State ? 

The Constitution of the United States intended to throw around the 
citizens a free protection, not inconsistent with the power to carry out 
the authority of the Government. Could you try him a second time? 
He got off once, but he was in fearful jeopardy while under trial. Coun- 
sel might say h'e ought not to have got off; the jur}' may not have been . 
wise or patriotic ; not so anxious to see the laws of the United States ob- 
served as they should have been ; they may not have believed the wit- 
nesses. All these things are possible, and a verdict of not guilty may 
be the result. The vengeance of the law is not satisfied yet, according 
to their views. Going into the State Courts, you, Mr. Attorney Genera), 
whose business it is to see that the laws of South Clarolina, as tliey now 
are, are executed, do not allow the man to escape unpunished. Pie is 
tried for the crime of murder. Is not that putting him tAvice ii> jeopardy 
for the same offense ? The priscmer's death or life is staked upon the 
issue. Life saved by an acquittal is not again endangered by a second 
trial. 

I maintain, therefore, may it please your Honors, if my friends will 
permit me to say so, with great confidence, that Congress had no power 
Vt^hatever to pass that seventh Section. 

A few words more, may it please your Honors, and I shall have done ; 
my strength is nearly exhausted. These are serious questions. They 
involve the relative powers of the General and State Governments in very 
material respects. They present for consideration the proposition, whether 
it is in the power of the Congress of the United States to enlarge the 
jurisdiction of the Judiciary Department of the United States by trench- 
ing upon the jurisdiction of the Judiciary Dep^a'tmeut of the State. They 
present the question whether there is not or may not be a conflict between 
the two sovereignties. These questions, as your Honors know, have often 
been submitted to the Judiciary of the United States, and in all ques- 
tions of reasonable doubt, where the Court did not feel perfectly satisfied 
that the law in question violated any statute of the United States, they 
have desired, and have accomplished that wish, to have it settled by an 
appeal to the ultimate Judicial tribunal, organized by our fathers for the 
very purpose of settling such controversies. The Government of the 
United States would not have outlived a score of years but for the Su- 
preme Court of the United States and the support of the Judiciary of the 
United States. It was certainly the object of the far-seeing men by whom 



84 

that Constitution was drafted, that, in reference to the powers of the 
General Government, and the restriction of the powers of the States, if 
differences of opinion should thereafter arise, that they should be settled, 
not as Vjetween the nation of the United States and other nations, but by 
peaceful, judicial arbitration ; and a Court was organized for that end, 
holding its tenure o'f office independently of the Executive and the Legis- 
lative Departments of the United States — supreme, as far as the powers 
lodged in them, are concerned. 

First came the great question of tlie right of a State to confer the 
Executive authority to navigate the rivers within the State by steam, 
la the case of O.-good and Lewis, the Chancellor of New York, of world- 
wide fame — I need not say Kent — held the hiAV to be constitutional. The 
Supreme Court and the, Court of Errors ruled in the same way. It was 
carried into the Supreme Court of the United States under the twenty- 
fifth Section of the Judiciary Act, because it was said to be in violation ^ 
of a right which the laws of the United States confer upon vessels 
licensed by the United S:ates. The judgment of the Court below, sus- 
tained upon the authority of men as able as ever graced any bench, was, 
by the unanimous opinion of the Supreme Court, reversed. You see the 
result. Who can tell what would have been the consequence if laws of 
that kind had been sustained ? Now, independent of State legislation, 
v.'hat comes of the authority given to Congress to regulate the commerce 
of vessels licensed by the United States. They go where they please 
upon the navigable waters within the limits of the United States un- 
challenged. 

Next came the case, almost equally important, of the Dartmouth Col- 
lege, reported, I think, in 4 Wheaton, and the case to which my brother 
referred, in connection with the New Hampshire case, reported in tlio 
same volume. 

The first brought before the Court the power of the State of New 
Hampshire to violate the charter which had been granted to Dartmouth 
College, and which, it was maintained, was a contract falling under the 
control of that clause of the Constitution which prohibits any State pass- 
ing laws in violation of contracts. The Courts of New Hampshire sus- 
tained the law. They always do. I would say almost always, for they 
are not always independent — I mean by tenure of office. The Supreme 
Court unanimously reversed the judgment. Then, in the ca^e referred tc 
yesterday, McCullough in Maryland, two questions ai'ose. The first was, 
had Congress any authority, under the Constitution, to establish a bank 
of the United States? Secondly, if it had, what were the rights of the 
bank as against the State Legislature? The first was maintained in an 
argument — lucid, as are all the arguments delivered by the then Chief 
Justice,- Marshal. The Court decided that the law being constitutional. 



85 

]\f aryland had no right to impose a tax upon the circulation of any branch 
office of the bank of the United States established within her limits. 

Then, iu recent times, there is what is called the Kevada case. The 
State of Nevada undertook to impose a tax upon every stage company, 
incorporated or otherwise, and every railroad company, of twenty-five 
cents on a dollar upon each passenger who might be conveyed in their 
several modes of conveyance. The Court, by unanimous decision, main- 
tained that Nevada had no right to pass any such law. Y\''hy not? Be- 
cause a citizen of the United States, said the majority of the Court, has 
the right to go where he pleases, irrespective of State taxation. No 
State has a right to support itself by taxing citizens of the United States 
for passing through or within her territorial limits. Two Judges dis- 
sented — not upon the ground that the judgment pronounced v.'as not 
the judgment which the majority of the Court concluded should be ren- 
dered, but because they did not altogether agree with the ground upon 
which the majority placed their judgment. Mr. Chief Justice Chase 
confirmed the opinion that such legislation was prohibited. ' 

Now, we are called upon to examine the validity of the legislation of 
Congress. May they not err? Who shall say that they may not? 
They are men, and it is a part of human nature, and of their nature, to 
be at times mistaken. Various influences may operate upon them. In 
high party times, the exigencies which party demands, with a view to 
its continuance in power, may warp their judgment and blind them to 
the limits of their authority. The President of the United States — I 
speak not in reference to this particular case, or with any prejudice — the 
President of the Uffited States may disregard, or not know, the limits of 
his power ; or, with a view to his success in a second election, be may 
give his approval to laws not wirhiu the scope of legislative authority, 
A great statutory protection with us, and which is thrown around the 
citizen, whoever he may be, when charged with any offense, is the writ of 
habeas corpus, by which he shall have that charge examined. This must 
not be taken away from him. Congress may claim to define what is re- 
bellion — not to state what was re])ellion when that part of the Constitu- 
tion Avas adopted, but to define it — and then to give to the President of 
the United States an authority, when, in his judgment, such a rebellion 
as they describe exists, and the public safety demands it, to suspend the 
writ, of habeas corpus, to march his legions into any State in this Union 
for the purpose of putting down the rebellion. Not an arm may have 
been raised against the authority of the State, or of the United States ; the 
judiciary of both may be in the exercise, unchallenged, of the jurisdiction 
conferred upon them by their respective Governments. In the case of 
domestic violence, the Legislature of the State where the violence may 
be perpetrated may call upon the Executive of the United States to 



86 

come to their uid ; and 'wlicn the violence exists in the recess of the 
Legishitnre, the Governor of the particular State may invoke the 
authorit}^ of the United States. Wlmt have they to do ? Do they 
come under the original provision for the purpose of enlarging the 
judicial jurisdiction of the Government of the Unite4 States? Cer- 
tainly not. They have to do that which, in the case supposed, the State 
is unable to do. They have to assist the State in putting down the do- 
mestic violence. When put down, the rebels — for rebels they are — are to 
be tried by the judiciary of the State, and of Ihe State only. 

Now, may it 'please your Honors, I am not saying that the validity of 
such legislation as found in the particular Act of 1871 is now before the 
Court. I only refer to it for the purpose of impressing upon your Honors 
the necessity of looking to the public good ; looking, in the language of 
the Constitution of the United States, when they give the power to 
suspend the w^rit of habeas corpus, to the good that the public safety de- 
mands.. With these questions ^re concerned the legitimate authority 
of the Uuit&d States, and the authority of South Carolina, or of any 
other State, which shall be settled by that tribunal whose voice is law, 
and to whose judgment all will assent. 

May it please your Honors, no man, as you know, sir, as presiding 
Judge, in the beginning and throughout the conte-^t — a contest fearfully 
desolating, from the war which grew out of it — was more solicitous than 
myself to maintain the authority of the Union, and to deny the power of any 
State, under any right independently of the Constitution, or under any right 
supposed to be found in the Constitution, to leave the Union. My voice 
and my vote was, upon all proper occasions, raised a§d given to maintain 
the authority of the Union. But I had hoped that, Avhca those who 
rebelled against its authority had laid down their arms, the war was 
over. I did not, iii my own mind, in my seat in the Senate of the 
United States, charge the men who were engaged in that fearful strug- 
gle, upon the part of the South, with any "intentional improper design. 
They had been educated to believe that the right of secession was a 
constitutional right, or, in the condition in which the Southern States 
were placed at the moment the W'ar was commenced, that there was a 
right of revolution. I think they made a mistake, a sad mistake, but 
it was an honest mistake. 

But, the war Over, much as I lamented the course they had pur- 
sued, I always grasped the hand of a f )rmer friend with the same plea- 
sure witli which I had taken it at tlie time of my former acquaintance with 
him. • The war is not over, it seems, now. Are we in rebellion now ? or 
does it rage within the limits of South Carolina ? They say there was an 
organization withiu'the State of South Carolina which looked to depriv- 
ing some citizens of the State of the rights secured to them by the Con- 



87 

stitution. I have regretted it. But is that rebellion ? Why, iu that 
sense, every crime that is perpetrated is a rebellion. Every associa- 
tion, whether willed Kii Klux, (a name, by the way, which the Presi- 
dent made classic by inserting it in his message, and which will live in 
all the future as one of the classic terms of the day, because of its being 
found in the message), or not, provided it is in its nature secret, is a re- 
bellious conspiracy; and I think your Honor, the presiding Judge, if not 
my friend, the District Judge, has, once \jpon a time, belonged to secret 
societies, Masonic or political ; societies intended to promote knowledge, 
and societies glorying in the a})pellation of knowing nothing. They were 
hard to put down. I know we found it so in Baltimore, and they found 
it so in Louisiana, where many men were killed in the exercise of the 
object of that Know Nothing conspiracy, no doubt set on foot for the 
purpose of accomplishing some patriotic end ; but would that have justi- 
fied the Government of the United States in declaring Louisiana, or 
Kentucky, or Maiyland, where those societies existed, in a state of rebel- 
lion ? or authorize the President of the United States to send his troops 
to put it down? I do not mean to be personal, but you, sir, might have 
been the victim of the first arrest. They were political ; but the vice of 
this particular society is that it is intended to interfere with the right 
of suffrage, and uo man can remain a tenant who does not vote as his 
landlord requests, and no man will be employed as a farm hand who 
is not willing to vote as his employer votes. I do not think the right 
of suffrage ought to be interfered with ; but are these people the only 
ones who are acting upon the theory of not receiving or employing a 
man who does not vote as they vote? How long, may it please your 
Honors, do you think any officer of the United States, high or low, would 
be permitted to enjoy his office, were he known to vote against the party 
, in power? The moment it should become known to the President, the 
order would at once be given, " Off with his head." Do you mean to 
indict that particular sovereignty, that "party of which you are honored 
members? Does not South Carolina, in her present Government, act 
a good deal upon that theory ? Has it not been common to all par- 
ties ? Whether wise or unwise, patriotic or not, as long as men arc men, 
and cannot raise themselves above the low level of party objects, the ele- 
vation of patriots, looking to the good of their country as the end to be 
accomplished, and not the distribution of patronage, so long will it be 
that there will be, in some way or other, or in some mode or other, an as- 
sumed right to interfere with the privilege of suffrage. 

The Great Architect of the Universe, by His wisdom and pov/er, has 

so ordered that the planets that fill the heavens shall revolve iu their 

" prescribed spheres. He guards, by the laws which He has impressed 

pon their nature, against the danger of collision, which would hurl 



them rJl into chaos and ruin. May it please your Honors, may our po- 
litical planets be sufFored also to revolve in their respective orbits, and 
may God, in His mercy, so guide and instruct them as not to subject them 
also to the peril of a collision, which may involve all in ruin, disaj^point 
the hopes of the world, disappoint the hopes of the great men from whom 
we have descended, disappoint the ends of those who fought through the 
revolutionary struggle, and by their blood and bravery exhibited their 
devotion to liberty. Let Him,..m His mercy, teach us to guard against 
such dangerous and perilous collisions, and enable us to go on in our re- 
spective orbits, distributing happiness and prosperity to all, exciting the 
admiration of the world, and serve as a beacon to guide and instruct the 
world in the best mode of preserving human liberty. 

After Mr. Johnson concluded, the Di.-trict Attorney stated that there 
were many precedents in the Acts of Congress to refer to the laws of the 
State for punishment, and that it was a practice which, as was stated in 
the opening argument, is quite common in the statute, and he referred to 
1 Brightly, page 204, Sections 16 and 17. The statutes expressly adopt 
the punishment of the State laws for the crimes committed, and the au- 
thorities sustaining them were cited. 

Mr. Stanbery. Were the parties brought to trial? Do they require the 
jury to find or not to find ? That is the question. 

Mr. Corbin read the statute. 

Mr. Stanbery. That merely refers to the State law for the measure of 
punishment. 

The Court. And that the locality gives jurisdiction. 

Mr. Corbin. That is not what it is cited for. It is cited to show that it is 
the common practice, and that it is su4ained by the Courts, to refer to 
the law of the State for the measure of punishment. 

Mr. Stanbery. If those two Sections, the 5th and 6th, instead of pre- 
senting a punishment, defined b}' Congress, to wit: Ten years' imprison- 
ment, and $5,000 fine — instead of that, had said that, upon conviction of 
the oflPense provided for in those Sections, they shall -be punished under 
the laws of the State, for the punishment of burglary, it would be clear. 
If you had a case of burglary to try, all you would have to do would be 
to look into the State law and find what the punishment for burglary 
was; and, after finding what the appropriate punishment was for the 
crime committed, to say that the law punishes you for burglary. 

The Court adjourned until December 7, at 11 o'clock A. M. 



89 



Columbia, December 7, 1871. 
The presidiog Judge delivered the following : 

OPINION OF THE COURT. 

After the proloDged and very able argument of counsel upon tliis mo- 
tion to quash, we feel embarrassed, gentlemen, that, upon so little delib- 
eration, we are to pass judgment upon the grave question raised here. 
But the fact that so many persons are now in confinement upon these 
charges, and that so many witnesses are in attendance upon the Court, 
at great personal expense, makes it necessary that we should not delay 
longer. And the first objection to the first count in the indictment is, 
that the Section of the Act of May 31, 1870, which this count charges 
the parties with conspiring to violate, declares no penalty for the offense. 

The first Section of the Act declares a right. It is referred to in this 
count by its number, and with sufiicient certainty, it seems to ns, to 
enable the parties charged, after trial, to plead the verdict rendered in 
this case in bar to another indictment. After declaring the right, the 
statute proceeds, in Section 7, to define tlie punishment for its violation. 
It is not necessary, it seems to us, that each Section of the Act should 
contain or disclose the penalty for its infraction. That is often, as in 
this statute, referred to a later, and generally to the closing, Section of 
the Act defining the crime or oflTense, and is made applicable to all the 
antecedent Sections. 

It is objected, moreover, that this, count does not contain the names of 
the parties who, being entitled to vote, were to be hindered and prevented 
from the exercise of the elective franchise by the traversees. It must be 
remembered that this is not an indictment to punish a wrong done to in- 
dividuals, against the peace and dignity of the United States, but for a 
conspiracy to do that wrong. The offense is completed the moment the 
compact is formed, whether any {)erson, within the contemplation of the 
first Section, has actually been hindered or not. If the traversees never 
committed any overt act, but separated and went home after the comple- 
tion of the conspiracy, they have incurred the penalty which the seventh 
Section prescribes. So it makes no difference what particular person the 
consfrtracy, when put in motion, first reached. The act complained of is 
the conspiracy ; and if it be true that any person was hindered or pre- 
vented from the exercise of the right granted by the first Section, such 
hindrance and prevention is only proof of the conspiracy, and does not 
in anywise tend to make the crime more complete. 

It is generally sufficient, in charging a statutory offense, to set it out 
in the words of the statute. If the statute uses a common law name for 
a crime which it proposes to punish, the indictment must set forth the 



90 

various ingredients of the crime which go to make up the offense at com- 
mon law. But when the statute itself creates the offense and defines it, 
it is sufficient, if the indictment uses the words of the statute, unless the 
words be indefinite and vague, ambiguous or general, in which case the 
indictment must so particularize the act complained of that the party- 
charged shall be in no doubt of the offense alleged against him. The 
certainty required is that which will enable hiln to plead the verdict in 
bar of any future action. 

It is alleged, in this count, that this conspiracy was to go into opera- 
tion at an election not yet held, to wit, the third Wednesday of October, 
1872, and it is objected that this is not sufficient ; that the right to vote 
is not a continuing right, but exists only at the time of its immediate ex- 
ercise. It would be strange, indeed, if parties could not be punished, if 
it be necessar}^ to punish them at all, for any offense but those committed 
against this Act on election day, and in the direct exercise of the elec- 
tive franchise. The usefulness of the Act of Congress would be entirely 
frustrated by such requirement. A man may be so effectually intimi- 
dated weeks before an election that he would not dare to go within a 
mile of the polls, and all the mischief the Act is intended to remedy 
would flourish, and no punishment could be awarded them, under this 
construction, because the right to vote is not a subsisting right, but one 
which recurs to the citizen on election day. We do not so hold. 

The uncertainty which the count leaves as to whether this was a State 
election or a Federal is urged as fatal. The indictment charges that this 
was a conspiracy to violate the first Section of the Act. This Section 
declares that all citizens shall be allowed to vote at all elections who are 
qualified by law to vote, without distinction of race, color or previous 
condition of servitude. Congress has never assumed the power to pre- 
scribe the qualifications of voters in the several States. To do so is left 
entirely with the States themselves. But the Constitution has declared 
that the States shall make no distinction on the grounds stated in this 
first Section ; and, by this legislation. Congress has endeavored, in a way 
which Congress thought appropriate, to enforce it. It is this Act of ap- 
propriate legislation, and the first Section of it, which the defendants are 
charged with violating, and we think it makes no difference at what elec- 
tion, whether it be State or Federal, he is intimidated or hinderec^from 
voting because of his race, color or previous condition of servitude. 

Congress may have found it difficult to devise a method by which to 
punish a State which, by law, made such distinction, and may have 
thought that legislation most likely to secure the end in view which pun- 
ished the individual citizen who acted by virtue of a State law, or upon 
his individual responsibility. 



91 

If the Act be within the scope of the amendment, and in the line of 
its purpose, Congress is the sole judge of its appropriateness. 

The next objection, which is that the count does not set forth the 
qualification of the voter, is sufficiently answered, we think, in the re- 
marks we have made resi^ecting the requirements of indictments setting 
forth statutory oflTenses. 

"We are of opinion that the second count of the indictment is bad, be- 
cause it does not allege that Amzi Ruiuey was qualified to vote; and fi^r 
another reason, more fatal, that it alleges the right of Rainey to vote to 
be a right and privilege granted to him by the Constitution of the 
United States. This, as we have shown, is not so. The riglit of a citi- 
zen to vote depends upon the laws of the State in which he resides, and 
is not granted to him by the Constitution of the United States, nor is 
such right guaranteed to him by that iustrupent. All that is guaran- 
teed is, that he shall not be deprived of the suftrage by reason of 
his race, color, or previous condition of servitude. 

The third count is a repetition of the second, with a clause setting out 
a charge of burglary. Concerning the Court's jurisdiction over such 
charge, the Court is divided in opinion, and will, therefore, make no 
comment on it at this time. 

Tlie fourth count is obnoxious to the objection that neither the citizen- 
ship of Rainey nor the fact of his qualifications to vote is set out. 

The fifth count repeats the charge contained in the fourth, with the 
additional clause contained in the third count, and the Court refrains 
from noticing it, for the reasons given as to the third count. 

The sixth count is intended to charge a conspiracy to oppress Rainey 
for having, prior to 1st February, 1871, exercised the right of sufiJl'age; 
and would be good if it were drawn with the particularity of the first 
count, which charges a conspiracy to oppress, to prevent the future exer- 
cise of this right. It does not, however, contain any allegation of the 
fact of qualification, nor that the party was entitled to vote in York 
County, or anywhere else, or that he ever exercised his right to vote. 

The seventh count is a repetition of the sixth, with the charge of bux*- 
glary added, as in the third count. 

The eighth count alleges a conspiracy to prevent and hinder Rainey 
from the exercise of a right secured to him by the Constitution of the 
United States, which is defined to be the right to be secure in his person 
and papers against unreasonable search. The Article in the Constitu- 
tion of the United States, to-enforce which this count is supposed to be 
drawn, has long been decided to be a mere restriction upon the United 
States itself. The right to be secure in one's house is not a right derived 
from the Constitution, but it existed long before the adoption of the 
Constitution at common law, and cannot be said to come within the 



92 

meaaing of the words of the Act "right, privilege or immunity granted 
or secured by the Constitution of the United States." 

The ninth count is entirely too indefinite, and the defendants could not 
possibly know, from its language, with what offence they were charged; 
and the same objection is valid as to the tenth count. 

The eleventh, and last count of the indictment, charges a conspiracy 
to injure Raincy because he had previously voted for a member of C<m- 
gress. We have no doubt of the power of Congress to interfere in the 
protection of voters at Federal elections, and that that power existed 
before the adoption of either of the recent amendments. ' It is a power 
necessary to the existence of Congress, and this count seems to set forth 
the charge with sufficient perspicuity, and is not liable to the objections 
urged against it. 

The motion to quash is overruled as to the first and eleventh counts of 
the indictment, and sustained as to the others, excepting such as the 
Court is divided respecting. 

Mr. Stanbery offered an entry which he had drawn in case there should 
be a difference of opinion on the question of the counts that referred to 
burglary. 

Mr. Corbin said, with the permission of the Court, he would withdraw 
the burglary count, wherever it appeared in the indictment, with the dis- 
tinct understanding that if he should feel it desirable to renew that count 
he might do so, giving the defense an opportunity to object if they de- 
sired it. 

Mr. Stanbery objected, that the gentleman could not enter sl nolle j^t'os- 
equi at this stage of the case. 

Mr. Johnson thought the opinion of the Court having been given, that 
that part of the indictment should be quashed ; there was nothing to be 
withdrawn, and the division should be certified to the Court above. 

Judge Bond. There is no question in the case, when the counts in the 
indictment are not before the Court, but are withdrawn. 

Mr. Stanbery. The Act of Congress is peremptory, that when the Court 
are divided, they shall certify their division to the Supreme Court. 

Mr. Johnson. The counts are not before the Court, but the indictments 
are, and the counts are in the indictment. The prosecution lattempted to 
sustain each one of the counts in the indictment; there are three or four 
of the counts, if not more, that charge that some other crimes than felony 
were committed, and a felony expressly prohibited by the several Sec- 
tions under which the^e counts have been framed. After the Court has 
divided in opinion on that, we submit v.'e are entitled to have that ques- 
tion certified to the Supreme Court. We are not to wait here till the 
counsel think {)roper to bring up some t)ther case. Why should not the 



93 

question be decided at the earliest possible moment? for it is one of great 
o-ravity — a question involving the authority of the United States and 
the authority of the States of the United States — and is a question 
of interest to the whole public, and not to the people of South Carolina 
alone. The decision pronounced there will settle it for all time. 

Judge Bond. The difficulty is, Mr. Johnson, that we cannot send a 
question up to the Supreme Court which does not actually exist, in any 
case, in the Court. The Government has withdrawn the count which 
raised the question, and the Supreme Court will be determining a ques- 
tion which does not exist, in any case, in the Court at this time. 

IMr. Stanbory again objected to the entry of a nol. pros, without the 
consent of the defendants. 

Mr. Johnson. When jour Honors say that the case is not before the 
Court, with due deference to that impression, I think that you are under 
a misapprehension. The case was before the Court this morning, when 
your Honors pronounced your decision. You have told the prosecutor 
that he cannot go before the jury, because the law is against them, or, at 
least, that you are divided in opinion. What has put it out of the 
Court ? 

Judge Bryan. I am of opinion that the Court has the discretion to 
deny the motion of the counsel ; they cannot iTCt absolutely, and it is 
dependent upon the Court whether they shall act. I am of the decided 
opinion that the construction that is passed is a very vital one, and one 
that ought to be given at the fa-st moment. It is not necessary, simply 
in this case, but it is of importance fo every State, and for the country, 
and the sooner the Supreme Court can act upon this matter the better. 
As far as I am concerned, I do not agree to the motion of the counsel. 

Mr. Corbin. If the Court please, there is one olijection to which I do 
not think it necessary to call the attention of the Court, because I thought 
the Court saw it clearly, as I did. That is this : The Court have pro- 
nounced a judgment of bad upon the count to which this charge of bur- 
glary is attached, and I had it in mind to hand out an indictment to 
meet this objection, and then attach another crime, another felony, to it. 
Mr. Johnson. Nothing can go up except the constitutionality of that par- 
ticular provision. The sole question will be : Has Congress the right to 
provide that if wrong be committed, and a particular offense against 
^vhich Congress has legislated, the offense of burglary or any other felony 
known to the laws of South Carolina — whether the statutes of South 
Carolina have the right to try it — that is, necessarily, the only question 
which can be argued in the Supreme Court. Did I understand the Court 
as to what counts were bad. 

Mr. Corbin. I understand the Court, in the opinion delivered, to say 



94 

that all the counts are bad except the burglary count, and about that 
the Court is divided. 

Judcre Bond. The first and last the Court sustain. 

Judge Bryan. That involves the proper punishment, under the law. 

Mr. Johnson. Some of the others were bad, I understood the Court to 
say, and upon some the Court were divided. 

Judge Bond. And now the prosecution asks permission of the Court 
to withdraw his counts alleging the burglary. 

Mr. Johnson. We deny their right. 

Judge Bond. The Court is of opinion that they have a right. 

Mr. Johnson. The Court is not of the opinion. 

Judge Bond. I say I am. 

Judge Bryan. The Court is divided — it is divided. 

Mr. Johnson. Then the motion of the United States to withdraw, being 
a motion upon which your Honors are divided, cannot be granted; we, 
therefore, ask your Honors to sign that (passing to the Court the entry 
proposed by ]\Ir. Stanbery.) 

The Court engaged a moment in consultation. 

Judge Bryan. The presiding Judge is of the opinion that, as presiding 
Judge, his decision in this matter gives the law in the case, subject t® 
the point that you can inake, for error iti his judgment. 

Mr. Johnson. I am not sure, may it please your Honor, that I under- 
stand you. 

Judge Bryan. The presiding Judge is of opinion that his ruling gov- 
erns this motion, subject to my difTerence of opinion. 

Mr. Jo^lnson. How are we to have the benefit in the Supreme Court, if 
this motion goes there ? 

Judge Bond. Mr. Johnson, I prefer to state what I think myself. The 
counsel having submitted a motion to withdraw the burglary counts in 
the indictment, I am of opinion tliat he has the right to do it, and ought 
to be allowed to do it. The District Judge differs from me. The ques- 
tion is, what opinion prevails, as a matter of practice. 

Judge Bz'yan. It is as I have stated. 

Mr. Stanbery. My recollection is, that in a case which comes from the 
District Court, by a writ of error, where the Circuit Court and the Dis- 
trict Court sit together, that the opinion of the presiding Judge prevails. 

Judge Bryan. We never sit together in appeals. 

Mr. Stanbery, Then the opinion of the presiding Judge of the Circuit 
Court prevails, unless, in the formation of this Court, a contrary prac- 
tice prevails. 

Mr. Corbin. Suppose this division should be certified to the Supreme 
Court — vrhat good would be effected? Nothing of value goes up. The 
burglary charge hinges upon the Court charging an offense against the 



95 

United States. If that offense is not charged properly, all fails, whether 
■we can inquire into the fact of the burglary or not. We don't want to 
■wait to try that question, but we propose to go on and try this case. 

Mr. Stanbery here referred the Court to chap. 5, p. 677, Conklin's 
Treatise, as to the course to be pursued upon certificate of agreement of 
opinion between the Judges of the Circuit Court. 

Judge Bryan. It is suggested by my brother that a case may be made 
in the indictment to be brought in to-morrow, and that this case be 
allowed to go on. Let us try this, subject to no future issue. If that 
meets the views of the counsel it will be agreeable to the Court. The 
difficulty in this case is that wc have had Vvitnesses attending here who 
have been in attendance for a long while. In the case suggested to be 
introduced to-morrow, there will be no witnesses. There will be uo argu- 
ment about it. 

Mr. Joh.nson. There are a good many witnesses, I understand, on both 
sides. 

Judge Bond. Had we not better proceed to get a jury. 

The defense asked an adjournment, as their -witnesses had not yet ar- 
rived ; but it was finally concluded to impanuel the jury, and then wait 
until the witnesses should appear. 

Right of Peremjytory Challenge. 

Counsel for the Government inquired if it was the purpose of the de- 
fense to sever in the challenges, and ,upon being informed that it was, 
announced that they, then, would sever in the trials, and dispose of each 
prisoner separately. 

Sherod Childers, alias "Bunk" Childers, was first arraigned, and after 
hearing read the first and last counts in the*indictmeut, asked — 

Clerk. How say you ; are you guilty or not guilty ? 

Prisoner. Not guilty. 

Clerk. Are you ready for trial ? 

Prisoner. No sir : my witnesses are not here. 

Judge Bond. We do not propose to go to trial. Who is counsel for 
the party. 

Mr. Wilson. I am his counsel. 

Judge Bond. Are you ready ? 

Mr. Wilson. No, sir. 

Mr. Corbin. If it please the Court, I would like to know whether w^e 
are trying cases here at the pleasure of the United States, after proper 
notice to all the parties, or at the pleasure of the prisoners. We have 
given these jiarties nearly four weeks' notice, of every charge, and to be 
ready for trial, and. I think the government has spent time and money 
enousch. 



96 

Mr. Johnson, They have spent quite money enough. 

Judge Bond (to Mr. Johnson.) The Court understands you are not 
counsel in this case. 

Mr. Wilson. He is associated with me; he and Mr. Staubery. 

Mr. Hart. If your Honors will peroait me, I will make a statement. 
On last Saturday Mr. "\Vilson was not present in Columbia, and I tem- 
porarily took charge of this case. I think, on the Friday previous, I 
applied to your Honors for an order to have witnesses summoned at the 
expense of the Government in certain cases. Your Honors then de- 
clined to issue the order, and led me to believe that possibly such an 
order would not be issued. On Saturday that order was granted, but as 
no mail left until Monday, I presume the subpccnas did not reach these 
witnesses before Tuesday, and yesterday probably was the day on which 
they were served. They may not reach here before to-day or to-morrow. 

Mr. Corbin called the attention of the Court to page 590 of Conklin's 
Treatise, in which Chief Justice Marshall, on the trial of Burr, made use 
of language in relation to unnecessary delay on the part of the defense, 
and applied the words of the Chief Justice to the desire, on the part of 
the defendant's counsel for delay, in this matter, and said : " Now this 
party was arrested some four weeks ago, and soon after, or at least two 
weeks before the term, was notified that he must be reddy for trial at this 
term. Two weeks of the term have gone by, and yet he is not ready. 
In the language of tlie Court, in this Burr case, he must be ready for 
trial." 

Judge Bond. It is not asking a delay until next term, but merely to 
get his witnesses here. We will go on and impanuel the jury to-day. 

The Court called as a juror, to be sworn in the case, Andrew AV. Cur- 
tis, colored, and asked the prisoner to accept or challenge him. 

Prisoner. I reject him. 

Mr. Corbin. We object to the prisoner's right of peremptory chal- 
lenge. 

Mr. Staubery. We are entitled not only to one, but ten of these chal- 
lenges. 

Mr. Chamberlain. You are entitled to ten, if any. 

INIr. Johnson. You make an objection, now give us the reason. 

Mr. Corbin. If the Court please, I call the attention of the Court to 
2 Blatchford's Circuit Court Reports, p. 470 : The case of the' United 
States against George Cottingham. 

The Court decided, in this case, that the prisoner had no right to per- 
emptory challenges, except in cajntal cases. 

He also referred to the case of the United States against Reid, 2 Blatch- 
ford, 447, and read to the Court a note, attached to the report of the 
case, which cites for authority the United States vs. Merchant, 12 Whea- 



97 

ton, 480, and United States vs. Wilson, 1 Baldwin. He also read the 
Judiciary Act of 1829, the Act of July 20, 1840, and quoted United 
States vs. Keed, 12 Howard, 3G1. He then continued : 

Now, if the Court please, we call attention to the second Section of 
the Act of Congress of 1865, 2 Brightly, p. 107: When the ofi'ense 
charged be treason or a capital offense, the defendant shall be entitled to 
twenty, and the United States to five peremptory challenges. In a trial 
for any other offense, in which the right of peremptory challenge now 
exists, the defendant shall be entitled to ten, and the United States to 
two peremptory challenges." What we say, if the Court please, as ap- 
pears from the decision to which we have referred, the riglit of peremp- 
tory challenge does not now exist at common law in criminal cases in the 
Courts of the United States. We also call the attention of the Court to 
the case of the United States against Sheppard, found in Abbott's United 
States Reports, Vol. 1, p. 4oo. 

This case also cites United States against Reed, 12 Howard, 365. 

The point in this case is this, if the Coi^rt please, and we quote it for 
the purpose of showing that the common law, and not the statute law of 
any State, is the law by which the proceedings are governed, in criminal 
trials, in this Court. That relates not only to the testimony of witnesses, 
but also to challenges. 

Mr. Stanbery. The question before your Honors is, whether we are en- 
titled to a peremptory challenge, or whether we are to be confined to 
challenges for favor. I suppose there can be no question about that, and 
that it is perfectly well settled by the Act of Congress — this subject of 
challenge — to wit : That, in cases of treason, there are to be twenty on 
behalf of the defendant, and in all other cases, below the grade of trea- 
son, felony, misdemeanors, and crimes and offenses of that character, the 
accused is entitled to ten peremptory challenges, the Government to two ; 
in treason, the accused to twent}^, and the Government to five ; keeping 
about the same proportion. The gentleman reads the statute, the Act of 
1865, which regulates the criminal procedure What is the forty-fifth 
Section, as given here on page 107? "When the offense charged be 
treason, or a capital offense, the defendant shall be entitled to twenty, 
and the United States to five peremptory challenges. In a trial for any 
other offense, in which the right of peremptory challenge now exists, the 
defendant shall be entitled to ten, and the United States to two peremp- 
tory challenges." 

Kow, I understand the gentleman to say, that though this secures the 
right of peremptory challenge, in all crimes below treason, to be that of 
tea jurors for the defendant, and tv/o for the United States, yet, inas- 
much as it is said, "where it? now exists," the geiitleman saj^s it is all 
uugator^', because tliere is no statute of the United States, as I undcr- 
7 



98 

siand him to say, ^vhich, prior to this, gives a peremptory challenge in 
the case of treason. Is that the point? 

Mr. Corbin. No, sir. 

Judge Bond. That Act of Congress provides that the right of chal- 
lens:© shall continue where it now exists by law. Where the right now 
exists. The question is, whether that means that the right now exists by 
State law or coQiraon law, or the law of Congress; and if you look at 
the Act preceding that, you will find, I think, the number of challenges 
regulated. For instance, I think there is an Act which says that where 
a misdemeanor has been committed upon the4iigh seas, that the number 
of challenges shall be two ; and there are frequent Acts of Congress 
which prescribe the number of challenges in particular cases. Now, the 
question is, whether the Act of 1865, speaking for the present instance, 
does not refer to this previous Act of Congress. 

Mr. Stanbery. Whether it does not refer to those particular mi?de- 
meauors which were previously created ? Then, is the question in the 
mind of ytair Honor, whether the challenge is confined to those very 
eases of offenses conimitted on the high seas? 

Judge Bond. Y.-s, sir, that is the question. 

Mr. Stanbery. Well, if the Court please, I must then take time to see 
where the Section is. This will illustrate it; on the same page (quoting 
a Section in the Act of 1865, whifh gave three challenges in a particular 
case,") Why that would be perfectly ridiculous. They could not have 
ten for that case. In the same Act, in the prior Section, the law only 
o-iviis three ; it did not refer to that case at all. The law is not made for 
that particular ca.se. But that is a misdemeanor, and this is a misde- 
meanor. 

But this shows, if the Court please, that the right is not to bo confined 
to cases where, already, peremptory challenges are fixed and provided 
for. It would leave this absurdity : you would have one rule in one case, 
and another in another. What does it mean, then ? As there is no gen- 
eral law of the United States that provides a right of challenge, you 
must resort, necessarily, either to the common law or the State law, 
" wherever it exists" — that is the word. Not where it exists under Fede- 
ral le<nslation, but ns woll under State legislation. To follow the States 
in trials, as much at- vo!-sible, is the policy of the United States Courts. 
Wherever it is found to exist as a right, then it is to be applied, subject 
on'v to those cases where special provisions are made by Congress. Now, 
if the Court please, how far shall the Courts go in this matter of follow- 
iijo- the State legislation. Let me read from the Act of 1840, p. 407, 
Conklin's Treatise. (Counsel here read from the Act of July 20, 1840.) 

It seems to me, if the Court please, that it is perfectly clear that if we 
do not find in the statutes of the United States any provision for the 



99 

right of peremptory clialleuges in casts of felony or misdemeanor, why, 
wherever we find it to exist under State laws, this Court must apply it, 
and give the party the benefit, because it is a most important privilege. 
When the Legislature made provision in the case of an offense on the 
high seas, they saw fit to limit pereiiiptory challenges to three, but they 
saw fit to give, in this case, ten, a much more grave offense than the gen- 
tlemen say is charged in their counts, which they say charge a felony, 
punishable, perhaps, by ten years' imprisonment and $5,000 fine. Now, in 
the State of South Carolina, where we are, in cases of misdemeanor, as I 
am informed, the right of challange is allowed — also in cases of felony — 
five in one and twenty iu the other. Well, Congress prevents us from 
adopting that number, by substituting the number of ten wherever, in the 
trial of a cause in any Court of the United States, the right of peremp- 
tory challenge exists as to such ofit-nse. Your Honors will recollect that 
this is a provision iu favor of the liberty and rights of the i)arty. These 
are pz'ovisions that are to be most benignly and liberally coiistrued. 
Congress intended to give the right of peremptory challenge, and said, 
wherever it existed before, it shall hereafter be to the number of ten, in 
limiting this to the States, not to an Act of Congress. 

Mr. Johnson. Your Honors will permit me to add a word or two. One 
thing is historically certain, may itplease your Honors. The object of 
Congress, so far as it has power to accomplish it, was to place trials on 
the same footing in Courts of the United States as they are in Courts of 
the States in which Courts of the United States may sit. The thirty- 
fourth Section of the Act of '8Q, which was interpreted by the Supreme 
Court in twelfth Hovvard. Perhaps the words would have comprehended 
criminal as well as civil cases, but the Supreme Court, by that decision, 
held, and I have no doubt held properly, that the true meaning of that 
Section was to confine it altogether to civil cases. As far as the offense 
was concerned, the proposition there was, the question there was, whether 
a party wlio would have been a competent witness under the statute laws 
of Virginia, iuacjriminal case, could be used as a witness iu a case arising 
under ihe laws of the United States— could be used in the Courts of the 
United States. The Supreme Court said that he could not. The Act 
referred to, of 1865, gives the right of challenge — twenty in one descrip- 
tion of cases (or rather recognized the right of challenge) ; and, in the 
other, right to challenge, peremptorily, ten. Now, it would be clear that 
if the words found in this Section, as it now exists, were not there, that 
the ri^ht to the challenge would exist. The words would comprehend it. 
The object ^YOuld not be accomplished without giving it that interpreta- 
tion. 

But it is supposed, by the counsel for the United States, that the ope- 
ration of the Act of '65 — that portion of it — is to be regulated by what 



100 

tlity ccDsider to he the meivaiog of the "words, in that Section, " as it now 
exists." 

They maintain that it is necessary to show, first, by common law, that 
peremptory challenge exists in South Carolina, or, secondly, that if the 
common law does not give the right, that it exists by some statute law of 
Congress ; so that the sole question resolves itself into this : "What did 
Cong;ress mean by saying that the right to challenge should be exercised 
by a party charged with a misdemeanor, &c.? Did they mean to say 
that the right of peremptory challenge must exist by some statute law of 
Congress, or by common law? They have used the general phraseology, 
which, as I understand it, means this— and, to apply it to a particular 
case — that if, on the trial for a misdemeanor in South Carolina, the right 
of challenge exists, it is a right which also exists on the trial of a like 
offense in the Courts of the United States. Congress never designed that 
there should be two modes of trial ; never designed that the prisoner 
should be less secure in obtaining a fair trial, when he was indicted in a 
Court of the United States, from the security which is afforded him by 
the laws of the State, than if he had been prosecuted in some State Court. 

Uniformity in this, as in everything else, Avas the object of the original 
Act of '89, and was the object of the Act of '40, and is the object of 
the Act of '65. Now, my brothers' •construction of the Act of '65 leads 
to this result : that it accomplishes nothing whatever, for, if it is to be re- 
stricted to a case in which the right of challenge exists, why was it passed 
at all? If, by the common law, the challenge was the right of the pri- 
soner ; if, by the statute law of the United States, it was the right of 
the prisoner ; if, by the State law, it was the right of the prisoner, there 
was no necessity for any legislation. None whatever. But the necessity 
for legislation arose from this : That Congress did not think proper to 
adopt the right of challenge as exercised in the statute law of the State, 
or under the common law. They might have thought that a right to 
challenge twenty ought not to exist. v They might have thought that a 
right to challenge less than ten ought not to prevail. Their sole object, 
then, as I submit to the Court, was to provide for the exercise of 
that right to the whole extent that they deemed necessary that the right 
should exist. 

Now, your Honors, the question before you is, whether the words 
" where the right no\v exists," are to be referred to the right of challenge 
as granted by some Act of Congress, or to a right of challenge as exist- 
ing under the common law, or under the State law. We find no such 
words in the Act, may it please your Honors. 

In the trial of any crime in the United States Court, the party should 
be entitled to the right of challenge of ten, in certain cases, and the United 
States to five, provided there exists in the State of South Carolina a right 



101 

to challenge in such a case. That is to say, in any partieulav case of mis- 
demeanor — in any particular case of felony. If there exists in South 
Carolina a right to challenge in the case of mis'leniean.or, or in the case 
of felony, then it may be exercised in the Courts of the United States, 
within the prescribed limits marked out by the Act of 1865. Sup- 
pose that the words " as it now exists " refer to the right of challenge 
as provided by the antecedent Act of 1865, or to any other antece- 
dent Act, by which the right of challenge, in cases of misdemeanor or 
of felony, existed, we are brought to the same result. The Act of 1865 
does not say that the right to challenge, in a case of misdemeanor or in a 
case of felony, exists only in such cases as there may be such right— in 
certain cases of misdemeanor or in certain cases of felony — but, as I un- 
derstand it, wherever there exists such a right, in a trial for a misde- 
meanor the Act applies, and the party is entitled to his right of chal- 
lenge, if he be tried in the Courts of the United States; or, wherever 
there exists such a rigiit, 'in a case of felony the Act of 1865 applies. En- 
larging the right in this case, it may be, diminishes the right in the last. 
The purpose is, as 1 apprehend, that the right of challenge should exist 
in the Courts of the United States in all cases where the right of chal- 
lenge existed under the tetate law, either by Act of Congress or by State 
legislation, or by common law legislation ; they intended that it should 
exist as modified when they passed the second Section of the Act. 

Mr. Chamberlain. If your Honors please, it is admitted, I belive — 
it must be apparent — that, if the right which is now claimed for these 
defendants, of ten peremptory challenges, is to be sustained, it must be 
upon the language of the Act of March 6, 1865, which is as follows : 
" When the offense charged be treason, or a capital offense, the defendant 
shall be entitled to twenty and the United States to five peremptory chal- 
lenges," and the argument — and the only argument of force, it seems to 
me — which is urged against the view for which we contend, is that our 
construction makes those words nugatory ; that, if our construction pre- 
vails, there is no other cause, no other offense, below treason or a capital 
offense, where the right of peremptory challenge does now exist. Well, 
now, if your Honors please, at the outset, it strikes me that it is some- 
what less to ask this Court to decide that an Act of Congress is nugatory 
than to make nugatory the decisions of the Courts which have estab- 
lished the proposition for which we contend : that, in cases below capital, 
no right of peremptory challenge exists. 

The utmost j'-ou do, if your Honors please, in sustaining us, according 
to the claim of the distinguished counsel for the defense, is simply that 
you say there is no other cause, and, therefore, that clause in the Act < f 
March 3, 1865, is nugatory. Well, now, in looking for authorities upon 
such a question as this, we naturally refer to Brightly's Federal Digest, 



102 

-\vhic]i brings the cases doAvn to 1868 complete. And, looking there, the 
first Section that strikes us is the Section under the head of " Challenges," 
where it is laid down, without any qualifications, that preremptory chal- 
lenges are not allowed in other than capital cases, and the authorities are 
cited. The first case that is referred to i:> in 21 Blatchford, p. 407 — 
the case of the United States against Cottiugham, already cited. This 
was an indictment against clerks in the post office at Albany, IST. Y., for 
opening a letter and stealing money therefrom. 

Now, if the Court will follow this case, it will be seen to be an exact 
auttioiity upon such a case as has nov/ arisen here. 

Judge Bond. What is the date of that decision ? 

]Mr. Chamberlain. 1852. 

INIr. Johnson. Before the Act of 1865 was passed ? 

Mr. Chamberlain. Before the Act of 1865 was piissed. 

The statute refers to the law, and says " where the right now exists ;" 
and I say that unless, betv.'een 1852 and 1865, counsel are able to pro- 
duce some decision or some law v/hieh gives that right, it did ^ot exist at 
that time. 

Well, now, what is this case? On the trial, counsel for the prisoner 
claimed the right to peremptory challenges, and the case was decided by 
Nelson, Judge, sitting in the Northern District of New York. 

Mr. Staubery. Before you proceed farther, here is an authority : 

In the case of the United States against the Beaufort Commissioners, 
April Term, 1871, before your Honors, a nTisdemeauor was on trial, and 
the Court held that the law of South Carolina, in reference to challenges 
in cases of misdemeanor, is the rule in the United States Courts, and 
allow peremptory challenges to either side. 

Mr. Corbin. That was by agreement of counsel. 

Judge Bond. Yes, sir ; there was no decision of that kind on our part; 
it was agreed to by counsel. 

Mr. Stanber3\ Then counsel agreed to change the law ? 

Mr. Corbin. We agreed to it to prevent any argument. 
^.■. Judge Bryan. It was done, as the counsel states, to save time — long con- 
troversy. It was conceded, in that particular, that they should be enti- 
tled to so many challenges. 

Mr. Stanbery to Mr. Chamberlain. You had better agree to it, to save 
time in this case. 

Mr. Chamberlain. I think, if the Court please, we have been held in 
sufficient strictness to justify us in insisting upon all the rights tlie United 
States has in this case. 

When I was interrupted, if 3'our Honors please, I was reading this 
decision of the United States against Cottiugham. It was a case where 
the counsel for the prisoner claimed that the challenges allowed by the 



103 



S.x^o law should prevail in the trial of this offense for opening a letter 
i;i the po?t office and stealing money therefrom, under the revised sta- 
tutes of New York ; and Nelsou, Judge, decided that the prisoner had 
no right to any of the peremptory challenges claimed, liecause such chal- 
lenges were not allowed at common law in any other than capital cases. 

I don't knoAv, if your Honors please, what decision could be more em- 
phatic, or' broader, or more unquestionable, than this decision. And 
here devolves this duty upon the counsel who are making this claim that 
thty shall show us that, between this decisiou and the pas;rage of the Act 
of ?»Iareh 3, 1865, thece was some law or some decision lo establish a 
right to peremptory challenges in cases less than cajntal. Now, the 
reierence in this case is to a note, in the United States against Reid, 
'which is found on page 447 of this same volume of Blatchtbrd. This 
case involved questions relating to juries, to their qualifications, to the 
mode of their selection, their summoning and their return, and it was 
held tluit the State regulations respecting such challenges — challenges 
ibr cau^c — challenge to the array — challenges for favor — that all these 
things attach to the qualifications of the panel ; and that, secondly, 
State regulations do apply to challenges to the array, or for favor, or for 
a cause shown; but they decided, very expressly, that peremptory chal- 
lenges, in criminal cases in the Federal Courts, are regulated by the com- 
mon law. 

Mr. Cham.berlain called the particular attention of the Court to the 
note at the foot of page 407 of Blatchford, in the case of the United 
States vs. Reid. He continued :- 

Now, your Honors, in further confirmation of this view, I reler to the 
decision of the Supreme Court, in 12 Howard. The decision which has 
been read by my associate, where Chief Justice Taney, giving the reason 
why the^e rules are not extended to criminal cases, is that the United 
State^J does not intend to put itself, in trials for offenses against itself, 
w'ithin the power of any State to frustrate or prevent the execution of 
the law by any unreasonable laws of the State. Qualifications and ex- 
emi)tiens, where the Court have the power to require the party who is 
challenged to show- cause, there is no danger of abuse, because the Court 
can control it. And so it is nut a good cause of challenge — it does not 
constitute a legal exemption. They never intended, as these decisions 
show, to go outside df that into the domain of peremptory challenges, 
and subject them to any rule that the State law might provide. 

It is incumbent to show that the right of peremptory challenge exists 
in this case, or else it is not protected by the Act of 1865. Dues it ex- 
itt ? Vrhere does it exist ? What authority is there for adopting the 
rules of the State, with respect to peremptory challenge ? Qualifi- 
cations and exemptions are regulated by State law, when they have 



104 

heen" adopted by a rule of the Court; but peremptory challenges, 
according to the decisions, have always been regulated by principles of 
common law, and we have not a word or decision cited, nor a particle of 
authority, but simply some reasoning upon the Act of 1865, which 
amounts to this : That, if you agree with us, in excluding these peremp- 
tory challenges, you will have said to Congress, that here is a clause in 
your Act that is simply nugatory. That is not a conclusion from which 
any Court need to shrink, especially v/hen the current of decisions sup- 
ports them, in the view that peremptory challenges are not allowed in 
any cases less than capital. 

Something has been said about both these offenses, in the first and elev- 
enth counts, being simply misdemeanors. If that be so, the defense is 
worse off in respect to challenges than they would be if they let this first 
count remain a felony; because a misdemeanor, by the laws of South 
Carolina, is not entitled to a single peremptory challenge. 

Mr. Stanbery. Yes, sir; to five. 

Mr. Chamberlain. 'The gentleman is right about the State law. If 
they could make the State law the rule in this Court, they would be en- 
titled, according to it, to five peremptory challenges, and the State to 
two; but that is precisely what the decision I have cited to your Honors 
now says has never been intended, and has never been done. All other 
challenges than peremptory, for a reason that is perfectly apparent and 
conclusive, have been excepted, and the Government of the United States 
has always adhered to the common law rule, and allowed no peremptory 
challenges in offenses less than capital. 

As I have said, we are entitled, before this argument should go against us, 
to have some other authority, some decision, especially when this is not a 
matter of argument, but a matter of decision. We a.e reasoning about 
this statute, but we are showing that, up to the time of the passage of 
that Act, no right of peremptory challenge did exist in cases less than 
capital. There is no authority, and no reason but the old one, that Chief 
Justice Taney and all the authorities gave, that peremptory challenges, 
not being scrutinzable, the Courts have no mode of protecting themselves 
against the mere caprice, whim and anxiety of the party to clear himself. 
They will not admit it ; but, in that matter, will adhere strictly to the 
common law, which does not permit such peremptory challenge. 

Mr. Stanbery, I desire to call the specia,! attention of the Court to a 
passage in Wharton's American Criminal La\v ; to the statute regulating 
challenges, found in Section 2958. 

The prosecution in this case is that of felony. There it exists in the 
common law, giving more than we require, viz: twenty challenges; and 
we ask for ten here. Wharton gives the law'S of the United States, and 
coming to this one he makes no comment upon it, but simply speaks of 



105 

peremptory diallenges as now existiug. It must exist, either by the 
statutes of the United States, by the commonJaw, or by the statute of the 
particLiku- State where the case is tried. It exists in the common hxw, if 
this be felony, as they claim it to be ; and it exists in the statutes of South 
Carolina, if it be felony, entitling us to twenty challenges ; and it exists, 
also, in South Carolina, if it be a misdemeanor, and entitles us to five. 
Now, this answers all the authorities the gentlemen have given us, and 
there was no such challenge in force when the Court delivered this opin- 
ion in New York, for it does not exist there. The commentator, in the 
quotations I have read, makes no comment, but simply,gives it as the rule. 
Your Honors must determine, before you can exclude it, where it 
exists. 

Mr. Corbin. The authorities and the express decisions cited by this au- 
thor, comments upon what he has stated as to the decisions of our Circuit 
Courts in Michigan, New York, and other places.- There was a very 
recent decision, of which, I regret to say, I have only a note; 
but it is since the statute referred to, and is given in the Seventh 
Internal Revenue Record. It was a case of misdemeanor, and was 
decided in New York City, in which it was decided that peremptory 
challenges are not-allowed in cases of misdemeanor in Federal Courts. 
The Court, in that case, decided, upon common law ground, that there is 
no such thing as peremptory challenge at common law. The case I refer 
to is that of the United States vs. Develin. 

Judge Bryan. The opinion of the Court is, that we are cut off from any 
resort to State legislation or State practice as a source of instruction, and 
as furnishing a rule to us. By the decision in Hovrard, we must look to the 
common law for the rule in this case. The practice of the Courts in civil 
cases, by that decision, does not furnish the rule in criminal cases. If the 
common law, therefore, does not give the right ol' peremptory challenge 
in such a case as this, there is no other source from which the right can be 
derived. The decision of Justice Nelson is, that the prisoner had no right 
t > any peremptory challenge, because such challenge was not allowed in 
c aumon law, in other than capital cases. The question is, whether that 
ruling is correct. If it is a fact? If it is binding on the Court? But, is 
it not a fact, as he stated, that peremptory challenge is not adopted in 
common law in other than capital cases? Is that disputed? 

Mr. Johnson. Certainly, it is ! We say it exists in all cases of felonies, 
and the authority just read by my colleague says so. 

Judge Bryan. That is the point upon which we desire to be advised. 

Mr. Stanbery. I will read another authority upon that point, that per- 
emptory challenges by the defendant are admitted without assigning any 
reason. [Mr. Stanbery here read Section 2958, of 3 Wharton.] 

Judge Bryan. That is the case of capital felonies, is it not ? 



106 

Mr. Stanhery. The wonl "capital " is not introduced. 

Mr. Corbiu. I desire to read to the Court Section 2956, from the vei«y 
same work, to show that, at common law, the defeudaut was required to 
show cause, while the Government was not. 

Judge Bryan. This is a matter of grave consequence. "We are foiced 
to a conclusion, under the decision in Howard, that there is no j)rogres3 
whatever in criminal matters, here in the United States Courts ; that the 
unmodified common law, and the common law, as modifievd by statutes, 
and prevailing in South Carolina and England, at the time of the adop- 
tion of the Constitution, shall be the rule of this Court. 

It seemj< to me it is carrying the decision in Howard very far — carry- 
ing it beyond its just intention; and I desire to look more carefully into 
the decision, to see whether we are cut off from all progress, and are to 
accept the common law, as unmodified, or the common law, a.s it was 
modified by statutes at the time i)f the adoption of the Constitution of the 
United States, as the rule of our action. 

Mr. Johnson. If your Honor will permit, I will say what I before de- 
sired to say, but fiiiled to do, that I am satisfied that the decision of 
Howard was the correct one. Indeed, it would be very bad taste in me 
(of which I trust I should not be guilty) to a.ssail any decision of the 
Supreme Court of the United States. 

Judge Bryan. AVe both accejit the decision. It is only the application 
about which there is a doubt. 

Mr. Johnson. I should be very sorry if your Honors did not accejit the 
decision of the Supreme Court of the United States. If you look at the 
reasoning of the Chief Justice, you will find it does not cover such a ca^e 
as this. He puts this construction of the Act of 1789 upon the ground 
that, to construe it as applying to rules of evidence, that to place the exe- 
cution of the laws of the United States Judiciary in the hands of the 
States, they might make rules of evidence which it would be impossible 
for the United States to comply with, so as to carry out their own laws. 
The counsel on the other side concede, notwithstanding the case in 
Howard, that the laws of the States in relation to the summoning of juries, 
the impanelling and qualification of jurors, the right of objection to the 
])aiiel, &c., are all, in the Courts of the United States, what they are iti 
the Courts of the State where the Courts of the United States may le 
sitting. 

Now, for the soul of me, I cannot distinguish bctAveen the right of a 
prisoner to have the benefit of a peremptory challenge, if it exists in the 
State Court, upcn the ground that that would interfere with the execut o i 
of the laws of the Courts. I ask how, and in what way ? There is 
nothing to prevent the laws being executed. Peremptory challenge, ne- 
cessarily speciiic, would be exhaustive, and, when exhaustive, the jury are 



107 

to be summoned, and the laws of the United States, so far as they are 
enforced in the Court, are to be carried out. But that is not the case, for 
tlie Courts of the United States are bound to observe the rules of evidence 
which the laws of the States may, from time to time, prescribe. 
The Court adjourned until the 8th,at 11 o'clock A. M. 



Columbia, December 8, 1871. 
In further support of the claim of peremptory challenges, Mr. Stan- 
bery said : 

May it please your Honors : 

At the adjournment yesterday, the point, as it seemed to rae, Avas 
whether, in finding authority for peremptory challenge under the law of 
1865, we were necessarily remittee! to the common laAV on the subject of 
felony, and to no other source; and your Honor, the presiding Judge, 
directed me to inquire as to whether, at common law, any ^aut capital 
felonies Avei-e entitled to the benefit of peremptory challenge. 

Now, if the Court please, as to that, I certainly must answer your 
Honors' question : That, if we look to the unmodified common law, it 
extended the right of peremptory challenge, not only to felonies, pun- 
ishable capitally, but, I apprehend, if the Court please, that it is a right, 
evt'U wlieu we look at the common law, as we understand the common 
law in this country, in felonies less than cai)ital. There has been a great 
dispute as to how much of the common and statute laws of England our 
ancestors brought to this country. There have been many disputes as 
to whether they brought with them the Statute of Uses, and whether 
they brought with them the statute of Elizabeth on the subject of chal- 
lenges. But every safe rule is, as to statutes not so old as 43d Eliza- 
beth or the Statute of Uses — the more modern English statutes altering 
the common law — that those that were in existence at the time our an- 
cestors came into this country — dating as far back as the reign of James 
I — enter into the body of the common law. 

Judge Bryan. Will you suffer me to interrupt you ? I stated that our 
difficulty was as to the application of the decision in Howard. He him- 
self supj)lies the answer — gives the rule — on page 185. [Judge Bryan 
then read from the opinion in Howard, in the United States v.-<. Reid.] 
Now we are to show what the right of challenge was in South Carolina 
before the passage of the Judiciary Act in 1789. 

Mr. Stanbery. I am advised as to that, if the Court please, by an offi- 
cer of the Court, the Clerk, that, prior to the Act of 1789, there was a 
statute in South Carolina which allowed twenty peremptory challenges 



108 

in favoi' of any defendant wlio was indicted for what was called a cler- 
gyable felony ; that is, for a felony punishable by death. 

Under the law of England, and, perhaps, under the statute of South 
Carolina, which allowed the benefit of clergy, and, receiving the bene- 
fit of clergy, the death penalty was removed, and branding, perhaps, or 
some other punishment substituted. 

The State, then, of South Carolina, at the date of the passage of that 
Act of 1789, extended the right of peremptory challenge, to the number 
of twenty jurors, to the defendant indicted for a clergyable felony ; that 
is, one not punishable by death wh^re the benefit of clergy was allowed. 
I am told further, by the Clerk, that, acting under the statute of 1789, 
the practice of these Courts of the United States, while he has been an 
officer of the Court — and that is for more than twenty years — 

The Clerk. The practice in the State Courts I was alluding to ; not the 
United States Courts. 

Mr. Staubery. Yes, sir ; tlie practice in the State, which has been uni- 
formly to allow twenty peremptory challenges ; so that this Act of Con- 
gress, so far as we are concerned, takes away one-half of the number 
which existed in 1789. In addition to that, to show Avliat is the common 
law, let Tne read from 1 Kent, 472. Here the Chancellor is looking for 
the source of our common law, and says: " It is, also, the established 
doctrine that English statutes, passed before the emigration of our ances- 
tors, and applicable to our situation, and in amendment of the law, con- 
stitute a part of the common law of this country." 

On page 609, Mr. Conklin says that the statute of Edward denied the 
right of peremptory challenge to the Crown ; but, under that statute, it 
has been the practice to put aside the juror, without cause, until it ap- 
pears that there will not be a full jury without such person, and referred 
to United States vs. Merchant & Colson, where this imjiortant rule of 
English practice, as stated by the Court, is made applicable to criminal 
proceedings in the United States Courts. 

It is not, tlierefore, the whole, bare, unchanged, unmodified, common 
law that we mast look to for our right, which was so severe that it pun- 
ished almost every felony with death, and allowed to no inferior crime 
the benefit of challenge of jurors. 

In view of the law of these decisions, if the Court please, we are en- 
titled to ten challenges, and, but for these rules, would have been en- 
titled to twenty under the established State law in 1789. As early as the 
year 1712, I find, by looking at the statutes of South Carolina, that this 
was the law of South Carolina: "No person arrainged for any petit 
treason, murder, or felony, shall be from henceforth admitted to any per- 
emptory challenge above the number of XX." 

Judge Bryan. The rule I think is abundantly clearly stated in the case 



109 

of Reid ; and the application of that rule is, that you must show that, at 
the time this Act was passed, under the law of South Carolina, (that is, 
coniraon law, as modified by the Legislature of South Carolina — the 
laws of South_Carolina prevailing at that time,) the right existed. That 
is the rule, and when that is explicitly the rule, then under that law you 
are entitled to peremptory challenge. Under the recent enactment of 
Congress, peremptory challenge is not limited to capital cases. In my 
judgment, the right of challenge extends to all cases to which the right 
of challenge extended in 1789,vrhen this Judiciary xlct was passed. This 
ruling of Howard, accepting the law of tlie States at that time, or the 
connnon law, as modified by the legislation of the States, at that time, is 
the rule governing the Courts of the United States. That is, the same 
laws which, prevailed in the State Courts at that time would prevail in 
the United States Courts. If, therefore, the right of challenge existed at 
that date, then the right of challenge was extended by Congress to 
cases other than those- not capital, and to felonies not capitiJ. Tiaat is my 
judgment. 

Mr. Johnson. Is that the opinion of the Court ? 

Judge Bond. What is that remark, Mr. Johnson ? 

Mr. Johnson. Is that the opinion of the Court ? 

Judge Bond. What is that remark, Mr. Johnson?. 

Mr. Johnson. I asked if this ruling, that we are entitled to the right of 
challenge, as limited by the Act of 1865, is the ruling of the Court. 

Judge Bond. I am of opinion that the right of challenge is determined 
by the number of challenges allowed ^at common law ; and that at com- 
mon law, in no case, is the right of challenge allowed but in capital cases; 
and that the Judiciary iVct adopts the number of thB common law. I 
think with Mr. Justice Nelson that, in these cases, the right of challenge 
does not exist — the right of peremptory challenge. 

Mr. Johnson. Do your Honors divide upon the point? 

Judge Bond. So far, Mr. Johnson, as this case is concerned; as my as- 
sociate has, apparently, given it some consideration, I am ready to yield 
the point to his judgment, and allow you the peremptory challenge. 

Pleas of Guilty. 

At this point of the proceedings, the Clerk of the Court placed the 
names of the fifty-one petit jurors — who had been empannelled,and which 
were written on slips of paper — in a hat. From the whole, a jury of 
twelve were to be drawn. 

Mr. vSlanbery. We see here ir; a difference of opinion with your Honors 
as to the construction of this new Act of Congress for the trial and pun- 
ishment of these ofiTenses. In view of the necessity of having these 
questions settled by the final arbitrament of the Supreme Court, we have 



110 

proposed to the opposite counsel, and, if tlie Court agree, we are agreed 
ou all sides to take a short way in the disposal of this case, re- 
serving the only question to be argued before this Court under the ar- 
rest of judgment ; and then upon the next case, which is, I understand, 
for murder, we shall make these questions and have the division of 
opinion certified there, and wait for further trial till we have the opinion 
of the Supreme Court. 

Judge Bond. Does the counsel for the prosecution consent ? 
Mr. Corhiu. Not unless the Court be divided, and the Court thinkj 
there is no other way of getting out of the difficulty. I am in the hands 
of the Court. It is a point I would not personally consent to, but if the 
Courfis divided, and if the views of the counsel are entertained by one 
of the Court, and the proceedings are blocked in this way, I do not 
see what else we can do. 

Judge Bond. There is no difference of opinion in this case; you may 
proceed in this case. 

Mr. Stanbery. The gentlemen agree to take up this question in the 
next case. 

Judge Boud. It may not be necessary. We will stop proceedings in 
the case to which we take exception. 

Mr. Stanbery. Our associate counsel, who is special counsel for the 
prisoners, desires to present an application to the Court. 

Mr. Wilson. There are, may it please the Court, important and grave 
preliminary questions made by the defense in this case, because it was the 
first presented by the Government. We desire now to say to the Court, 
as counsel for the prisoner, Slierod Childers, that he voluntarily confessed 
to an officer of the Government that he was with the party charged in 
the indictment. He now enters the plea of guilty, but he will ask the 
Court, feefbre he is sentenced, to submit affidavits that he was not a par- 
ticipant in the acts and felonies alleged, or even cognizant of them, 
which, if of the atrocious character stated by the Attorney General, in 
his opening speech, we are not here to defend, excuse or palliate. The 
prisoner is ready to enter a plea of g'dlty. 

Mr. Johnson. We withdraw the plea of not guilty. 
Judge Bond. Would it not be better for the Court to hear your wit- 
nesses, and the witnesses on the other side, that the Court njtiy learn the 
character of the case. 

Mr. Stanbery. That is usually done by affidavits. 

Mr. Wilson. We make the same statement and enter the same plea for 
Hezekiah Porter. I only speak for those two. 

Mr. Stanbery. These parties plead guilty on the first and eleventh 
counts. Now, in the last count, I observe that the day they are held for 
the commission of the offense — ordinarily immaterial — is the day sue- 



Ill 

ceecUng, the passage of the law, which, I suppose, we must call the Ku 
Klux law, which was passed on the 20th day of April, 1871, while the 
act committed by these parties was on a day in March preceding. It 
was no offense under this law — for the law did not propose to be ex post 
fndo in punishing a crime committed — and we wish it understood, in 
pleading guilty to these counts, if they were guilty of them, so that they 
may not be prejudiced as being guilty of a crime not committed at the 
time this Act was passed. Whether they can attempt to locate it under 
that Act as being a conspiracy, is a question which we can discuss at the 
proper time. 

Mr. Corbin. The assault and battery, in the case of Sherod Childers, 
took place, as a matter of fact, on the 22d of March, but we should have 
endeavored to show, had we gone on with the trial, that the cons[)iracy 
was a continuing, and still existing, conspiracy. It was a conspiracy, 
with its organization and by-laws, and was in full blast on the 20th of 
April, when that other Act was passed. 

Mr. Johnson. In pleading guilty, we wish it borne in mind that the 
offense was committed on the 22d of March, while the law was passed on 
the 20th of April. The count charges a cons[)iiacy that was carried into 
effect by an assault and battery committed on Rainey. So far, as that 
count is concerned, there can b^ no doubt that there must be a judgment 
in the prisoners' favor upon that count, for, at the time the offense was 
com-mitted, there was no law prohibiting the offense. 

The prisoners, Bherod Childers, Evans Murphy, William Montgomery 
and Hezekiah Porter, the only defendants under arrest, wore brought into 
Court, and each, for himself, pleaded guilty to the first and eleventh 
counts in the indictment. -• 

Thereupon the Court adjourned until the 9th, at 11 o'clock A. Isl. 



Columbia, December 9, 1^71. 
After agreeing to send the ca^e of James William Avery* to the 
Supreme Court, upon a certificate of division, for a determination of the 
unsettled questions made in the case of Allen Crosby and others, Mr. 
Stanbery asked leave to make hir- argument on the 

Measure of Panishmeni 

in behalf of the prisoners who had plead guilty in the Crosby case. The 
Court announced that they were ready to hear the argument, and Mr. 
Stanbery proceeded as follows : 

* See Part U. 



112 / 

ARGUMENT OF MR. STANBERY. 

The question which we now propose to discuss, may it please your 
Honors, I regard as very material, for it relates to the measure of pun- 
ishment which the statutes of the United States have provided for per- 
sons who are guilty of the offense to which these defendants have plead 
guilty. We claim that they are to be punished according to the pro- 
visions of the fourth Section of the Act of 1870 ; while the gentlemen 
who appear here for the United States claim that they are to be punished 
according to the provisions of the sixth Section of this same Act. A 
very important matter, certainly ; for if the measure of punishment fixed 
for their offense is fixed by the fourth Section; their ofPense is a misde- 
meanor, punishable by a fine, not less than five hundred dollars, and im- 
prisonment, not to exceed one year. While, if the gentlemen are correct, 
and they are to be punished according to the provisions of the sixth 
Section, then their time 6f punishment may be extended to ten "years in- 
stead of one, and to five thousand dollars ; and, more than that, they are 
to be — as an additional penalty attached to that Section — divested, for- 
ever, of the privilege of holding any office of honor, trust or profit. 

Mr. Chamberlain, (interrupting). You do not mean that the limitation 
of fine, in that fourth Section, is five hundred dollars ? That is the mini- 
mum — not less than five hundred. 

Mr. Stanbery, (continuing). Yes, sir. You are right. «,The Court sees 
that the question is one of very great importance to these defendants, and 
of very great concern and serious inquiry on all sides, in construing, and, 
especially to the Court, in pronouncing judgment, under those Acts. Now, 
our position is, that the fourth Section defines the offense of which we have 
pleaded "guilty, "and fixes the measure of punishment. And that the 
sixth Section has nothing whatever to do with any offense charged in this 
indictment. 

Your Honors will observe that we are now limited to the first count, 
and to the eleventh. Those are the only two counts left, all the others 
having been pronounced by the Court invalid and quashed, or abandoned 
by the District Attorney. I must add that, as to the eleventh count, 
v;hich purports to be under the Act of 1871, I understand from the gen- 
tlemen that they now do not claim that this offense is provided for under 
that Act, but that they limit themselves to Section number six for pun- 
ishment under that count, v.ithout any reference to the Act of 1871. 

'Now, I must ask your Honors to give me your attention to a pretty full 
investigation of what is contained in this Act of 1^)70; and I read the 
first Section. 

Counsel read, in full. Section 1 of the Enforcement Act, of JMav 31, 
1870, and resumed: 



113 

Your Honors will observe that this relates altogether to the riglit o 
suffrage; aud when you refer to the title -of the Act, which sometimes is 
looked to, you find it is "An Act to enforce the rights of citizens of the 
United States to vote in the several States of this Union, and for other 
purposes." The voting part of it was the one chiefly in view, and that 
first Section is limited altogether to the sufirage right. The same is true 
as to the second Section, which imposes penalties uf)on officers who, in the 
execution of their office, prevent parties otherwise entitled to vote from 
doing some preliminary act, such as registration, or from acquiring the 
proper qualifications to become voters. It is, therefore, an official offense, 
and refers exclusively to the suffrage. 

Then, the third Section provides for the case of the voter who has been 
excluded, by official opposition, from receiving a certificate of his qualifi- 
cation, when he was ready to show proper qualification, and, upon affidavit 
of that matter, he is to be allowed to vote at the election. Still, this Sec- 
tion relates to the right of suffrage, as the first and second do. 

Up to this point, the legislation of Congress has made provision, first, 
for enjoyment of the right of suffVage, under proper qualifications ; 
secondly, against official misconduct in preventing the exercise of that 
right, by a denial of the proper certificate ; and, thirdly, by providing 
how the right may be exercised by the individual who has been thus, by 
official misconduct, prevented from obtaining the proper certificate. 

Next comes the provision against individual interference v*'ith the suf- 
frage. Now, what is the language of Section 4 ? "That if any person, 
by force, bribery, threats, intimidation, or other unlawful means, shall 
hinder, delay, prevt^nt or obstruct, or shall combine and confederate with 
others to hinder, delay, prevent or obstruct, any citizen froni doing any 
act required to he done to cpialify him to vote, or from voting, at any 
election, as aforesaid," as stated in that first Section, " such person shall, 
for every such offense, forfeit and pay the sum of five hundred dollars to 
the person aggrieved thereby, to be recovered by an action on the case, 
with full costs aud such allowance for counsel fees as the Court shall deem 
just, and shall, also, fur every such offense, be guilty of a misdemeanor, 
and shall, on cuuviction thereof, be fined not less than five hundred dol- 
lars, or be imprisoned not less than one month and not more than one 
year, or both, at the discretion of tlie Court." 

This is the Section that protects the right of suffrage against individ- 
ual interference; and it covers the whole case. It gives protection to the 
right and gives remedies for its obstruction; first, by action to the party 
injured, in the recovery of damages to himself; second, by public prose- 
cution for the offense, giving exactly to the Court the measure of punish- 
ment, in the way of fine and in the way of imprisonment, and giving to 
the offense the character of a misdemeanor — not of a felony. 



114 

I mulerstand, my learned friends, that thsy have not indicted the de- 
feiKitint under this Section, and. do not propose to punish him under this 
Section. Then they have not indicted him for any offense that he has 
committed. They say their indictment is founded upon the sixth Sec- 
tion, and of course they must show that a penalty is given in that sixth 
Section for the Act charged. 

Before I refer to the sixth Section I will call attention to Section 
five : 

" Sectiox 5. And be it further enacted, That if any person shall pre- 
vent, hinder, control, or intimidate, or shall attempt to prevent, hinder, 
control, or intimidate, any person from exercising, or in exercising, the 
right of suffrage, to whom the right of suffrage is secured or guaranteed 
by the fifteenth amendment to the Constitution of the United States, by 
means of bribery, threats, or threats of depriving such person of employ- 
ment or occupation, or of ejecting such person from rented house, lands, 
or other property, or by threats of refusing to renew leases or contracts 
for labor, or by threats of violence to himself or family, such person so 
offending shall be deemed guilty of a misdemeanor, and shall, on convic- 
tion thereof, be fined not less than five hundred dollars, or be imprisoned 
not less than one month and not more than one year, or both, at the dis- 
cretion of the Court." 

Mark, if your Honors please, it still has reference to the suffrage ; still 
relates to an infraction of the right of suflrage, but refers to that riglit as 
o'uaranteed by the fifteenth amendment. In other respects, it is like the 
fourth. But I suppose it is intended to cover the ease in which Congress 
can properly legislate, and that is, as to officers to be voted for who are 
Federal officers, as members of Congress and electors of President and 
Vice-President ; but, still, it relates to the sufirage, and is still a misde- 
meanor, although done by personal violence ; although it is done by 
bribery ; although it is effected by turning him out of his lease, refusing 
to renew his lease or contracts for labor. Xo matter how it is done, un- 
der that fifth Section it is still punished merely as a misdemeanor, with 
precisely the same measure of punishment as in the fourth Section ; so it 
is to the defendants a matter of no consequence whether they be punished 
under the fourth or fifth Sections. 

Now, when we come to the sixth Section, what do we find ? These 
words : 

" Section 6. And be it further enacted. That, if two or more persons' 
shall baud or conspire together, or go in disguise upon the public high- 
way, or upon the premises of another, with intent to violate any provi- 
sion of this Act, or to injure, oppress, threaten or intimidate any citizen 
with intent to prevent or hinder his free exercise and enjoyment of any 
riiiht or nrivilege grantad or secured to him by the Constitution or laws 



115 

of tlie United States, or because of his having exercised the same, such 
persons shall be held guilty of felony, and, on conviction thereof, shall 
be fined or imprisoned, or both, at the discretion of the Court — the fine 
not to exceed five thousand dollars, aud the imprisonment not to exceed 
ten years ; aud shall, moreover, be thereafter ineligible to, and disabled 
from, holding any office or place of honor, profit or trust created by the 
Constitution or laws of the United States." 

If your Honors can find the word " vote " or " suflfrage " in that Sec- 
tion, it is what I have not been able to do. Here are some general rigjits, 
" immunities and privileges," but what were in contemplation by Congress 
is U(,'t stated here. Aud the very thing — the subject-matter which, ac- 
cording to this indictment, is to be punished, i. e., the exercise of the right 
of suffrage — is no \vliere so much us mentioned in this Section. The thing 
specially provided for in the five preceding Sections, that is, the right of 
suffrage, is not at all mentioned here. This Section must fall under that 
part of the title of the Act which is " for other purposes," that is, to se- 
cure other rights than the right to vote. 

Nov\', to take up the indictment. The first count charges that tlicse 
defendants " did conspire together to prevent divers male citizens of the 
United States," &c., Cjualified to vote, "from exercising the right and 
privilege of voting," &c.. 

Now, if this is a good count at all, as your Honors have said it is 
— if this is a good count at all, is it a good count under the fourth 
Section? It charges a conspiracy ; so does the fourth Section charge a 
conspiracy ; it charges a conspiracy.to hinder — [The Associate Justice 
here made a gesture of dissent.] Did I understand your Honor not to 
admit that the fourth Section cliarges a conspiracy ? 

Judge Bryan. The Court does not understand it to charge a conspi- 
racy. 

Mr. Stanbery. Will your Honors let mc call your attention to that ? 
for if I am wrong in that, I am wrong throughout in this case. Let us 
see if it charges a conspiracy : " If any person, by force or bribery ;" why 
that is not a conspiracy, for one person cannot be guilty of a conspiracy. 
But, " or shall combine and confederate w^itli others ;" is not that a con- 
spiracy ? 

Judge Bryan. It does not take cognizance of the conspiracy. 

Mr. Stanbery. But punishes a person for a conspiracy. 

Judge Bryan. It does not take cognizance of the conspiracy. 

Mr. Stanbery. Undoubtedly, if the Court please, it does take cogni- 
zance of it, for it prohibits and punishes it. Now, if an individual is in- 
dicted under this clause, what must be proved ? Why, that he is a con- 
spirator ; that he is engaged in a conspiracy to prevent and hinder. 
Uuquestionufbly, twenty could be indicted under that Section. You might 



116 

indict all the parties in the conspiracy, or you may inrlict one man for a 
conspiracy in which twenty were engaged, just as well as the twenty, for 
these wrongs are joint as well as several. That is the character of torts ; 
they are not like contracts. When you come to trial, you may elect to 
try one out of the tweuty, and make h'u an individual case; and 
however he might have violated the Section in other respects, if you 
indict him as a conspirator, you must prove a conspiracy. That is 
perfectly clear. 

Is not the measure of punishment, according to the judgment of Con- 
gress, fixed by this Section, the one that must prevail for any such of- 
fense as this, whether committed by the person individually, or by him 
as one of a band of conspirators. Is not that inevitable? 

Why, no, says the gentleman ; certainly, that is all very well, and if 
you indict him under that Section as a conspirator, or an individual, you 
can only punish him according to this lighter punishment ; his offense is 
not a felony, it is only a misdemeanor. But, according to the gentleman. 
Congress changed- its meaning as to the degree of punishment for pre- 
venting a man from voting. They change their opinion when they come 
to the sixth Section. They reconsider the matter provided for by the 
fourth Section, and in the sixth Section of the same Act they ace of 
opinion that public policy requires that the thing denounced in the fourth 
Section, as being punishable as a misdemeanor, punishable by imprison- 
ment, not exceeding one year, ought to be punished as a felony. They 
would make out that Congress had mistaken the offense when they called 
it a misdemeanor, as in the fourth Section, and that, when they came to 
the sixth Section, they found it was a felony, and added nine years of 
imprisonment to the punishment that might be inflicted for the oifeuse. 
They would have us believe that Congress changed their ideas altogether, 
and found it necessary and proper to depart from what they had enacted 
in the fourth Section. We are, it seems, to leave the fourth Section in 
the Act for quite a new provision for the same thing, and a new puhish- 
ment for^the same thing. And y(,'t they left it right there, to confuse 
every lawyer or Judge who should be called upon to construe those Sec- 
tions, to ascertain what was the true measure of punishment to be meted 
out in ease of interference with the right of suffrage. Congress meant 
no such thing, and has provided for no such thing in this sixth Section. 
Congress has here no reference to the suffrage question ; it has reference 
to conspiracies against other rights and immunities — such as are men- 
tioned in the sixteenth Section of the same Act. 

The gentleman may say, here are certain words which might embrace 
general privileges and immunities, and which might embrace the light of 
voting. What are they? They are not specified in the Section. 

Congress has not gone into particulars, and, inasmuch as it was in- 



117 

tended by tliis Act to protect the voting privilege, and other privileges 
bcoiiles, we say it was these other privileges or rights, wherever we find 
them in the provisions of this Act, that are to be protected from a con- 
spiracy by the sixth Section. And what are these? They are privileges 
and immunities granted or secured by the Constitution or laws of the 
United States, and by the sixteenth Section of this Act. Have not your 
Honors already stated that that right has been secured by the laws of 
the United States ? 

Judge Bond. The right was not granted by the Constitution of the 
United States. 

Mr. Stanbory. Has not your Honor said that the right of voting was 
secured by the Constitution of the United States ? 

Mr. Corbin. He has not said it was not. 

Mr. Stanbery. The right is secured by the State law, and the provi- 
sion is made that all shall enjoy that privilege, without respect to 
race, color, or previous condition. If your Honor should say that this 
right embraces the right to vote from finding the words " secured or 
granted," what, I ask, are the rules of construction that prevent your 
Honor from finding the prohibition there? Certainly, it is not stated. 
It is made out by intendment, if made out at all. The rule is this, that 
where a particular thing is provided for by Act of Congress, or other 
legislative Act, and, subsequently, there is a general clause which does 
not name the thing, but which, by intendment, it might include, the 
clause is to be governed by the previous Section that did embrace it . 
and is not tliat a sound rule of cont^truction ? Where there is a special 
thing provided for by the law, and when, in the same law, or any subse- 
quent law, there is a general provision, in which that special thing is not 
mentioned, but which would embrace other things, and might, possibly, 
embrace that thing, and where the rule of punishment is given, where 
the special thing is mentioned, and another rule of punishment is given 
where the general provision is made, which, according to the laws of 
construction, is to prevail, the special, particular enactment, or the sub- 
sequent general clause, which would embrace other things, and might 
embrace this thing by intendment ? Now, first of all, to go back a 
great way, I quote from Gth Coke's Reports, p. 19. [Mr. Stanbery quoted 
from the authority referred to.] That is the rule, and is supported by 
many authorities. 

Are we not precisely within the rule? The fourth Section provides 
for a conspiracy against a particular right — the right of suffi-agc — and 
specifies the penalty and punishment for infringement, whether done by 
an individual or conspirator ; there is every word that is necessary to 
define the offense, and the puuishmeAt is specified for the offense. 

It is that sort of misdemeanor where the right of civil action is given 



118 

to tlie party to recover his (lamnges, and then punishment afterwards to 
satisfy the public for the infringement of that riglit. It is called a mis- 
demeanor, and it is punished as such. 

Now, what consideration could induce your Honors to desert that very 
Section, made and provided by Congress for the particular thing, and 
for all branches of the particular thing? How, I ask, can your Honors 
leave that and come to the sixth Section, which does not name this par- 
ticular thing, and which only deals with general words as to "rights se- 
cured," and provides for a higher grade of crime, and a severer grade of 
punishment? 

Besides this, that the particular thing is not to be controlled by the 
general, there are other rules. One is, that no construction is to be put 
upon a statute if it leads to an absurdity. Does not this construction to 
which I have referred lead to an absurdity? They say this thing is pro- 
vided for in the fourth Section, and the conspirator is punished so and so ; 
and in the next Section but one, the same thing precisely, that of a con- 
spiracy to interfere with the exercise of the franchise is also provided for, 
and the punishment is ten times as great, and is now called a felony, 
whereas, in the former instance, it was simply called a misdemeanor. Why, 
the gentlemen must think that Congress did not know what they were 
about, to name an offense in the fourth Section as a misdenieanor, and to 
name the same thing in the sixth Section as a felony, and yet the posi- 
tion of the gentlemen leads to this absurdity. 

You have no right to construe any Section, so tliat its construction 
leads to an absurdity. You are not to suppose that legislators meant to 
involve themselves in such an absurdity as the contradiction I refer to 
Avould involve them. 

There is another rule of construction which prevails, which is this : 
Where you find direct repugnancy between one Section and another, or 
one clause of a Section and another, you must settle which you will adopt, 
and you must do this upon the most reasonable construction you can 
give. When you cannot fulfill every Section of the law, because one Section 
says one thing and another exactly the contrary ; when there is a direct 
repugnancy, and you cannot make both j^revailjthe rule is, you must make 
that prevail which is most reasonable — uires mngis valecit qnam aereaf. 
If there is no repugnancy apparent between two Sections of the law, or 
two clauses in the same Section, then you are to g\;ye effect to both upon 
the proper subject-matter which they are intended to provide for ; as, 
for i]istance, where one Section provides for a particular offense against 
the franchise, and another Section provides for an offense against general 
privileges or immunities, not specifying voting privileges, and there are 
other privileges and immunities, such as are stated in several of their 
counts — such, for instance, as enjoying personal liberty, protection from 



119 

seizures, from which the Lof^ishiture intended to protect them — then there 
is no repugnance between the two Sections ; then you mut^t carry thexu 
both out. You must not set one aside ; you must give effect to all. 

Now, I agree that if that sixth Section* had provided for a couspiracy 
to prevent the right of voting, why, as a matter of course, there would be 
a direct repugnance for them ; it would not be possible to make both 
Sections prevail by any rule of construction ; but by giving a construc- 
tion to both Sections, so that both will stand, you are avoiding a repug- 
nancy. 

No unreasonable construction must be put upon any law. Now, con- 
sider it upon the ground of reasonableness ; when Congress, in that fourth 
Section, determines what shall be the measure of punishment for conspir- 
ing against the exercise of the right of suffrage, they say it is a misde- 
meanor, and punish it as a misdemeanor. Now, according to the gentle- 
men, when they came to the sixth Section, they were after the same 
thing, and to punish the same thing; but, according to the sixth Section, 
it is no longer a n)isdenieanor, but a felony; no longer punishable as a 
misdemeanor, but punishable as a felony, with tenfold greater severity 
than it was to have been punished in a former Section. Is that a rea- 
sonable construction? Would it not be infinitely more reasonable, as to 
that particular interference with the right of voting, to refer it to that 
fourth Section; and what is there provided ? That would make the whole 
thing perfectly reasonable. 

Again : this is a criminal statute. It is to be construed strictly, not 
with the la^tude Vv'e sometimes ob'serve in construing contracts, between 
parties. It is to be construed strictly, .sud in favor of life, liberty and 
the rights of the citizen. That is the rule in construing criminal statutes ; 
they are not to be sti'etched by intendment. They are to be construed, 
strictly, because they involve penalties punishable with death, and the loss 
of liberty and property. According, then, to that rule of construing tliem 
strictly in ftivor of life and liberty, when you find this fourth Section 
providing an inferior punishment, and the sixth Section porviding for a 
higher degree of punishment, and when your case, apparently, may cer- 
tainly fall within the fourth Section, and by intendment fall within the 
sixth Section, you are to be held to the strict construction, and can gain 
nothing by intendment where the other provision is plain. Is not that a 
souiid rule for the construction of criminal law? 

Will the gentlemen say that the sixth Section, because it uses the 
words " conspire together," means anything else than tlie words used in 
the fourth Section, where the words " combine" and " confederate'' are 
employed ? 

I do not know whether the gentlemen will make use of that argument 
or not. They will not advise us. It perhaps did not occur to them that 



120 

there; was a change in the language ; if it did they seem unwilling to cora- 
rnit themselves to any precise wording. What do we find in the fourth 
Section ? Do we find it provides for a different thing than conhipiracy ? 
It says " combine autl confederate." In the second Section it speaks of 
" two or more shall band or conspire together." Is there any diffirence ? 
We have in the English language words of synonymous meaning, w-hex'e 
different words are used to express the same idea, and, I suppose, I shall 
have to go to a dictionary to show that either phrase resolves itself into 
the other, if the Government is to tui-n so critical and gramma- 
tical in their argument. Now, what is the definition that Webster 
gives of the w(n-d "combination?" "Intimate union, or association 
of two or more persons or things by set purpose or agreement, for effect- 
ing some object by joint operation ; in a good sense, when the object is 
laudable ; ni an ill sense, when it is illegal or iniquitous. When the 
word stands by itself, it is commonly taken in a bad sense, as combina- 
tions have been formed among the people. It is sometimes equivalent to 
league or to consjjiracy; we say a combination of men to overthrow the 
Government, or a combination to resist tyranny ; another meaning is 
close union in connection." He defines "conspiracy," "a combination of 
men for an evil purpose; an agreement between two or more persons to 
commit some crime in concert; particularly a combination to commit 
ti'eason, or excite sedition or insurrection against the Government of a 
State ; a plot ; as a conspiracy against the life of a King — a conspiracy 
against the Government." 

Mr, Stanbery here read from the precedents that the very words " com- 
bine and confederate together " were uBed in indictments for conspi- 
racy. 

What is confederation for an evil purpose, but combination and con- 
spiracy ? We are taught to look at the essence of a thing, not to every 
particular word ; we are not to attempt to expound an act by a critical 
or grammatical construction of single words, but rather by the e^ence 
and substance of the thing. Very bad grammar may sometimes be found 
in the wording of an Act, but it is not regarded in the construction of 
the statute. An improper word may be used, but the meaning may be 
all right ; the law does not regard it where the intention is perfectly 
cleai'. 

They combine and confederate together to prevent a man from voting; 
in other words, they conspire together. Is it not the same thing? Can 
you find a different offense in it? Does not the same agreement make a 
combination as well as a conspiracy? Is not the definition given in the 
books that a conspiracy is nothing but a combination? If conspiracy, 
then, is combination, combination is cons{)iracy. The words resolve 
themselves into one another, and are evidently synonymous. 



121 

I think I take a very weak view of the case, if, fur a moment, I en- 
tertain the idea that such an argument is to have any weight with your 
Honors, and that you are going to look for the shadow instead of the 
substance. What I say is, that for all confederations, combinations or 
conspiracies to interfere with the exercise of the franchise, the fourth Sec- 
tion provides the rule and no other ; and that conibiuations or conspira- 
cies, provided for in the sixth Section, must relate to other rights than 
those of the franchise or of voting. 

I now wish to direct your Honors' attention to the eleventh count in 
the indictment. (The counsel here read it.) In both the first and the 
eleventh counts, it is interfering with the right of suffrage. This pur- 
ports to be under the Act of 1871, and the counsel, I understand, have 
agreed to try them under that Act. 

Mr. Corbin. No; we have not. 

Mr. Stanbery. Do you rely upon the Act of 1871 ? 

Mr. Corbin. Certainly; they are guilty under the Act of 1871. We 
have agreed that the conspiracy was on the 22d of ]\[arch, while the Act 
of 1871 was not })assed until April. But while we set up that the whip- 
ping of Arazi liainey took place on the 22d of March, we insist that the 
men wlio did it were in a general conspiracy ; that it was an organization 
in which they continued in the conspiracy after the Act was passed. 

Mr. Stanbery. You mean that a conspiracy was formed, and that the 
overt act was committed before; that no new conspiracy was funned, but 
that the old one was in operation. 

I will now read so much of the second Section of the Act of 1871 as 
relates to this matter. 

Mr. Stanbery here read from that Section. 

Tiie eleventh' count does not charge a general conspiracy, but a special 
one ; and that was to punish Rainey for having voted at the election for 
Wallace, and the proof was that the conspiracy was accomplished by an 
overt act, and all this before the Act of 1871 was passed. There is, 
therefore, no ground for saying that it was still existing at the date of 
the Act of 1871. 

But if it were still a continuing conspiracy, it was under the first 
agreement, made prior to the Act of 1821, and not a new conspiracy, 
made afterwards. 

The Act of 1821 did not apply to offenses already committed, or to 
conspiracies already formed, but for cons[)iracies that should be thereafter 
formed. It is clearly so by the language I have quoted, "that if two or 
more persons in the United States shall conspire" — not shall have conspired. 
They must come together after this law, and' enter into an original con- 
spiracy, before they come within the operation of this law. This law, 
according to the gentlemen's construction, must have a retrospective. ope- 



122 

ration to fasten it upon these persons. The conspiracy was in March, 
1871. It is provided for by the Act of 1870. The Act of 1§71 looks to 
the future. It is for those parties who shall, from this date, conspire — 
who shall now begin to conspire. They are to be punished in the mode pro- 
vided for in this Act. Is that not perfectly clear? I think your Honors 
are bound to give it such a construction. 

To punish these men by an Act passed after the commission of the 
offense, is to introduce a new kiud of punii^hnient ; that would make it 
an ex jjosr facto law. It is a rule with ex pod facto laws, that they pro- 
vide that what was innocent before shall be made a crime afterwards. If it 
provides that an act that before was misdemeanor shall now be felony, 
that is ex j^ost facto, or, when applied to a former act, makes that a 
crime which was before innocent. It is no new conspiracy, no new crimf. 
They have not conspired again. It is still the old offense that they 
have committed, and under the old law, and louo; before the new law was 
passed ; and now you take them out of the punishment of the old law, 
and provide for a conspiracy by a new law, made afcer the act was com- 
mitted. Now, I do not know what the gentlemen mean by a cohtinuous 
conspiracy, so as to make it out a new conspiracy. I know there are cer- 
tain things that are included in the term continuity, as, for instance, in a 
case of larceny, if the offense is committed in one County, and the goods 
are carried into another, according to English law, the thief may be in- 
dicted not merely in the County where the offense was committed, but in 
that to wliich he brings the stolen goods ; and, as applied to our own law, 
if a party steal a horse in South Carolina and ride him into North Caro- 
lina, why, I suppose, you could go into North Carolina and indict the man 
for stealing that horse ; that is continuity, and the act of asportation 
makes him criminal in the second jurisdiction. In that cdse, the party is 
still engaged in a crime, and, except in an instance of that kind, I should 
like the gentlemen to find mean instance of crime by a continuit}'. 

Take the case of nuisance. If the nuisance is continuous, the party 
may be indicted for the continuance of the nuisance, as well as for the 
nuisance originally committed, for these are distinct offenses. I take it 
your Honors will wait until there is a new conspiracy. If you do not, you 
punish him under the old law for the original conspiracy, and under the 
new law for the continuation of the conspiracy. You punish hini-twice 
for tlie same thing. 

In any point of view in which I am able to look at this Section of the 
law, your Honors have but one thing to direct you, and that is to sen- 
tence these parties under the fourth Section. They have broken no 
other law, and they have acknowledged themselves guilty of the one they 
have broken, and I ask your Honors that the penalties of the previous 
statute, which makes the crime a misdemeanor, be applied. How is it 



123 

possible, under the circumstances, that your Honors can condemn these 
men to imprisonment for a longer period thau that Section of tlie Act 
tlxes? Are your Honors satisfied that you can do it? It is a most im- 
portant thing to deal with human liberty. It is a matter that should be 
handled with extreme caution. The Judge is bound to conform to the 
law, but he 'must take great care which law he is bound to perform, and 
be careful that he does not mete out punishment provided for by another 
law, or punish an individual for an act provided for by one Section by a 
measure of punishment far greater than that provided for by another. 

For these reasons, your Honors, I claim that the only judgment that 
can be pronounced upon these men, is that provided for in the Act of 
1870. 

Mr. Corbin said his associate suggested, and he agreed with liim, that 
it might be well to take time to examine the authorities upon the point 
which had been so elaborately discussed by the learned gentlemen. For 
himself, he thought there was a short and conclusive answer to the gentle- 
man's argument, but not kno*ving how the fine points of the counsel 
might strike the mind of the Court, he thought it well to ask a little de- 
lay, in order to prepare for a reply. If, however, the Court desired him 
to proceed, he would comply with the wishes of the Court. 

The Court adjourned until the 11th, at 11 o'clock A. M. 



Columbia, December 11, 1871. 
Mr. Stanbery called the attention of the Court to some additional au- 
thorities, speaking as follows : 

May it please your Honors : 

1 wish to call to the notice of the Court two authorities upon t!ie point 
a? to phraseology — the change of phraseology between the 4th and 6th 
Seciions — Wharton's Criminal LaAv, Vol. I, page 377 : " But, v,^herever 
tliere is a change of phraseology, and a word not in the statute is substi- 
tuted in the indictment for one that is, anckthe word that is substituted 
is equivalent for the word used in the statute, or is of more extensive 
significance, the indictment will be sufficient." There are, undoubtedly, 
exceptions to this rule, where a word is used in a statute which has a 
technical meaning that no other word has, as, for instance, " kill and 
murder" — there is no equivalent for that; " burglariously " — there is no 
equivalent for that ; " ravish " — there is no equivalent for that ; but, for 
conspiracy, there ie no such rule. On the contrary, if the Court please, 
here is a precedent. Here Wharton gives precedence for all kinds of 
conspiracies ; and now, what is the first precedent? A murder. " That 



124 

A. B , late, etc., and C. D., late, etc., being persons of evil minds and 
dispositions, together with divers other evil-disposed persons, etc., wick- 
edly, etc., violently, naaliciously and nnlawfully did conspire, band, con- 
federate, and agree together" — band, conspire, confederate, and agree 
together — all equivalent words. That is on page 607, and the same lan- 
guage occurs under the head of conspiracy. There are a great many 
given, Ijut 1 think your Honors will find that combine and confederate 
are just as appropriate and equivalent words for an offense as con- 
spiracy. 

ARGUMENT OF MR. CHAaiBERLAIX. 

Mat/ i- pleiise your Honors : 

We listened, on Saturday, to a very grave and extended argument, 
upon the measure of punishment to be applied to these prisoners who 
have pleaded guilty. Representing the Government, we did not think 
that we should fully discharge our duty, if we did not give a careful con- 
sideration to this argument, and, I may add, that we also felt that we 
should hardly pay a proper respect to so distinguished counsel as those 
who represent the defendants in this instance, if we did not give such 
consideration to the argument so seriously and elaborately presented to 
the Court. We have considered, to the best of our ability, the scope and 
force of that argument, and are prepared to say all that we have to say 
in a very few remarks, this morning ; and I certainly do not think it 
would be becoming in us to detain the time of this Court with any argu- 
ment beyond what the case seems absolutely to call for. Our position 
is, that this question has been virtually and really settled by the decision 
of the Court, upon the motion to quash this indictment. The Court, upon 
the motion to quash the first count in this indictment, have held it to be 
good, for reasons to which I desire now to call the attention of the Court- 
The first Section — I read now from your Honor's opinion: 

" The first Section of the Act declares a right. It is referred to in this 
count by its number, and with sufficient certainty, it seems to us, to ena- 
ble the parties charged, after trial, to plead the verdict rendered in this 
case, in bar of another indictment. After declaring the right, the sta- 
tute proceeds, in Section seven, to define the punishment for its violatii>r'. 
It is not necessary, it seems to us, that each Section of the Act shou'd 
contain or discloS{! the penalty for its infraction ; that is often, as in this 
statute, referred to a later and generally to the closing Section of the 
Act defining the crime or offense, and is made applicable to all the ante- 
cedent Sections." 

The Court now have decided, in the words that I have read, that this 
count, charging a violation of the provisions of the first Section of this 



125 

Act, is good, because, while the first Section dechires a, right, the sixth 
Section makes the infraction of that right a crime, and affixes a penalty 
for it. Now, how is it, if your Honors please, that in that view of this 
case it can any longer be a question what Section affixes the punishment 
for this offense ? The Court have said, distinctly, that because the offense 
and its punishment are declared in the sixth Section, that, therefore, this 
count is good, although the right is declared in the first Section of the 
Act. And now the claim is gravely made that, although we can indict 
under the sixth Section for a violation of the first Section, yet after we 
have indicted and convicted, then the Court must go back, away from 
the sixth Section, under wliich we have indicted, and which Section de- 
fines the ofiTense, and seek in Section 4 for the measure of punishment. 

We cannot feel, for a moment, that argument is necessary to be ad- 
dressed to this Court, after pronouncing this opinion upon this point. All 
we have to say is, that if the Court are right in holding that this indict- 
ment can be drawn for a violation of the first Section, under the sixth 
Section, we have only to show what penalty the sixth Section prescribes 
for a violation of the provisions of the Act. 

We have a word more, if your Honors please, and that is, if any ar- 
gument is nec.essary, nothing is clearer than that, under the proper rules 
for the construction of a statute, this Court had not already decided the 
point that these Sections of this statute are all harmonious, and that 
each of them has its object, which object is distinguishable, and, to a 
certain extent, supported from every other Section. Under this viev/, the 
fourth Section of the Act is evidently designed, as your Honor, the Dis- 
trict Judge, intimated during the argument of the di:-tinguished coun- 
sel — that the fourth Section was aimed at an individual offense. We do 
not care to dispute that, under that Section, we might have possibly in- 
dicted for a conspiracy ; that the intent of that Section is, evidently, to 
punish any person who shall commit these acts ; an<l it is not until 
you arrive at the sixth Section that you have any language — I mean aj:iy 
exact phraseology — which covers the combining of two or more i^ersons 
with intent to violate the provisions of this Act; but that the highest rule 
of construction, I may say, which requires the Court to give force atid 
eflTect to every part of a statute, would surely give to this Court that in- 
terpretation. Those fourth and fifth Sections w^ere intended to bear 
against an individual who should commit the offense therein named, 
while the sixth Section was added to cover, broadly, a conspiracy of tAVo 
or more persons to violate any provisions of the Act. So that we say 
that, if your Honors had not already practically decided this in deciding 
that we had a right to use the sixth Section, we could easily follow the 
argument of the distinguished counsel, and show, abundantly, thatlsuch 
was the purpose uf the Act. The fourth and fifth Sections were aimed 



126 

at the individual offeuse, and the sixth Section at a conspiracy. That is 
all, if your Honors 2:)lease, vre have to say on that point. 

We now come to the question with reference to the eleventh count. 
Whatever argument might have been urged under other circumstances, 
these prisoners have pleaded guilty to ihe eleventh count, as it originally 
stood. 

How, now, if your Honors please, is it in the power of these prisoners 
to claim that they are not punishable under this Section, when they have 
plea<led gailty, and said that they did commit the offense, in form and 
manner, as set forth in this count ? Under other circumstances, and in 
the cases to follow, we are aware that this question might be raised ; but 
all we have to say upon this count of the indictment, and the measure 
of punishment ajoplicable to it, is, that these parties have pleaded guilty, 
and the question is foreclosed, and they are estopped from denying that 
this Court ought to punish them for an offeuse which they have said they 
are guilty of committing. 

Mr. Johnson, (sotto voce). Do you want to say anything, ]\[r. Corbin. 

Mr. Corbin. No, sir; it is too small a question fur me to talk upon. 

ARGUMENT OF MR. JOHNSON. 

3Iay it please your Honors: 

On the motion which we made to quash this indictment, the Court have 
decided that six of the counts were bad, and have divided upon the 
question whether three of the other counts are good or bad. The result 
of that decision is to leave before your Honors, now, the first -and eleventh 
counts, and the question upon which you are asked to pass your judg- 
ment is, what puuishment shall be awarded for the offense described in 
the first count, and then, whether any punishment can be awarded for the 
offense described in the eleventh count. Mr. Attorney General, and in 
that, I suppose, the .District Attorney concurs, seems to suppose that the 
question in relation to the first count has already been decided by your 
Honors. Our ansv>'er to that is, that it was not made — that it would be 
extraordinary if a decision upon a question, not raised on either side, 
and not necessary to be raised at that state of the indictment, should be 
considered as conclusive. When the Court's attention is brought to the 
particular objection it has now before it — 

Mr. Chamberlain. I said, virtually decide. 

Mr. Johnson. I suppose a virtual decision is a decision. A decision 
that is not virtual is no decision. Still he relied upon it as a decision : 
now, my friend says that what he meant was a virtual decision. I cannot 
catch thfe distinction. If he relies upon it as a decision, then the Court 
is called upon, whether they have decided it either literally or virtually. 
If they have made a decision, either literally or virtually, and they do 



127 

not desire to hear an argument upon any ground that the}'- had consid- 
ered a particular question, then neither my friend or myself have any 
desire to occupy tlie time of the Court. 

But I don't consider, may it please your Honors, that you have de- 
cided it at all. Now, suppose it to be res Integra, and for the first time 
brought to the attention of the Court, the question is : what judg- 
ment are you authorized to pronouce against the parties who have 
plead guilty to the first count. Tliat is a question of not only 
serious import, perhaps, to the parties, but of serious interest 
to the Court. The Court must be as desirous to ascertain what 
judgment they are authorized to pronounce as the parties or 
their counsel are desirous of having the proper judgment pronounced. 
Your Honors would be guilty of an abuse of the law if, intentionally, 
you awarded «. judgment which the law did not authorize. And, as 
you are incapable of awarding, intentionally, such a judgment, you 
must be, of course, desirous to know what judgment it \-- tliat the law 
gives you authority to pronounce. I shall occupy your Honors for a 
very brief period in discussing that, and the question which arises upon 
the eleventh count. The first Section of the Act of 1870 merely de- 
fines the right of the citizen, and nothing else. If the indictment had 
been framed alone upon that Section, or, to speak more accurately, if 
there had not been otiier Sections in the saine Act, I suppose the at- 
torneys for the United States would hanliy contend that any judgment 
could have been awarded. It provides for no penalty there, pecuniary 
or personal. It merely says that the parties described in that Section 
shall have the right which the Section describes, and that is all. 

Well, now, your Honors have decided that, notwithstanding this 
character of the first Section, tlie first count in this indictment will 
stand good, because the counsel for the United States have a right to 
refer to some other Section in this Act to show that the law does pro- 
vide a punishment for the violation of the right granted by the 
first Section. That wc admit, now that your Honors have decided 
it so. 

But, then, the question presents itself: what other Section can be re- 
sorted to for the purpose of ascertaining what judgment is to be pro- 
nounced against him v/ho violates the first Section ; that is, against him 
who violates the rights secured by the first Section. 

We say it is the punishment described by the fourth Section. Coun- 
sel for the Government may maintain that it is the punishment provided 
by the sixth Section. Which is right? Is it not the proposition upon 
which 3"our Honors are called upon to decide? I understood 'Mr. Attor- 
ney General to admit, with that clearness which has characterized his 
efforts throughout this case, that they might have indicted under the 



128 

fourth Section. Might have indicted for what ? Might have in- 
dicted for the perpetration of the offense cliarged in the count. "Whaj 
is that ? 

Mr. Chamberlain. I know that the counsel desires to state my posi- 
tion correctly in all respects. I do not admit that we might have in- 
dicted under the fourth Section. I simply said that, even if we could 
have indicted under the fourth Section, we still had the same right to in- 
dict under the^ixth Section. 

. Mr. Johnson. I certainly do not mean to misrepresent the Attorney 
General, but I certainly understood him that it was possible that they 
might have indicted under the fourth Section. But, whether he ad- 
mitted it or not, Cv')uld not an indictment have been framed under the 
fourth Section? Now, I do not understand the learned counsel for the 
Government as admitting, as I supposed him to have admitted, that an 
indictment could have been framed for a violation of the right under the 
provisions of the fourth Section. The fourth Section looks to the perpe- 
tration of two offenses, or, rather, to the same offense, or, rather, of the 
same offense by an individual, and by an individual in combination 
with others. If the latter part of that Section was not in the Section, 
but it provided simply against an individual wrong-doer, against him who 
should violate the first Section, we might admit that there was no incon- 
sistency between that Section and the sixth Section. 

But if, under the fourth Section, the offense charged in this indictment 
could have been charged, then it is for the Court to hold whether, look- 
ing at tlie object of that Section and the subsequent sixth Section, the 
Government is not bound to indict under that Section. Well, could it 
not, then, have been framed under the fourth Section? Why not? Our 
learned brothers maintain that what the fourth Section does is to punish 
an individual wrongdoer. Wiiy, that is true, if tbe individual is alone. 
Nobody could be punished but bin} for the offense stated under the fourth 
Section. But if, pursuing the language of the fourth Section, they charge 
that he combined with others, or confederated with others, banded him- 
self with others to perpetrate an offense under the first Section, then he 
would sustain the chai-ge, or does sustain the charge of a confederation, 
combination or banding together. What is that but a conspiracy? Is 
it not a conspiracy, if men shall go together^ and agree to act in concert 
for the purpose of accomplishing an illegal end ? Who can doubt that ? 
Can it, for a moment, be reasonably argued — and I mean it with no dis- 
respect — that he who combines, he who confederates, he who bands him- 
self with others to do the end prohibited — an end illegal and liable to be 
punished — is not a conspirator ? Wliy, what do you do under such an 
indictment as is now before you, framed under the sixth Section ? Are 
you going to punish these parties. Don't you punish them individually ? 



129 

Have you not permitted them to sever in their defense? and what is the 
meaning of the plea of guilty, which each of Ihem has filed, as to the 
charge against himself individually ? It is, that he did combine, con- 
federate and baud with others ; that he did conspire ; but, upon trying 
him severally, you punish him individually. You do not punish the 
others, who are alleged to have been parties to the conspiracy ; they are 
to be punished only when they are before the Court for trial ; so tliat each 
one in an indictment for conspiracy, where the right to sever exists — and 
your Honors have held tliat it exists in this case — stands before you pre- 
cisely as he would have stood if none but himself had been indicted for 
conspiracy to violate the first Section. There is a logical astuteness that 
I cannot exactly grasp — which is left to the young men. My mind is too 
blunted to see it. ' Age is withered. 

Mr. Corbin, (sotto vocr). Lost your eye sight. 

Mr. Johnson. Perhaps. (I wish the reporters to put that in.) I want 
to exclude a conclusion. They say that conspiracy means conspiracy.. 
Well, that I don't deny ; but what is conspiracy ? What do the books 
tell us : " Agreeing, banding together, confederating and combining to do 
an illegal act." That is conspiracy, and if that is conspiracy — if that 
is the very definition of the term conspiracy — if that is all that is neces- 
sary to be proved against the party for the ofiense of conspiracy, I should 
like to know by what subtlety of ratiocination the learned counsel on the 
other siSe can succeed in showing that he who is indicted for a conspiracy 
could not be convicted for it, if it was proved that he had combined, con- 
federated and banded himself together with othei-s. Oh, no, says the 
learned counsel — conspiracy is combination, but combination is not con- 
spiracy — conspiracy is confederation, but confederation is not conspiracy. 
Well, if conspiracy is not confederation or combination, what in the name 
of common sense is it ? has it any meaning ? Look to the definition of 
the offense, and you will find it consists of confederation and combina- 
tion. The very essence of the offense of conspiracy is that the defendant 
is charged that he combined and confederated with others to do the act 
charged, and he is to be convicted by proof. Well, if he can be con- 
victed by proof of the elements, so to speak, of the term of which con- 
spiracy is composed, why cannot he be indicted for conspiracy under the 
fourth Section, provided the terms combine, and confederate, and band 
together, are to be found in this Section ? Then your Honors have to 
look to that Section which first punishes an individual offender for an act 
done by him individually. It next charges him, and punishes him, for 
combining and confederating with others to do the illegal act. Well, if 
confederation and combination establishes conspiracy, then proof of the 
conspiracy, or the allegation, involves alone the inquiry : Did the party 
charged with conspiracy combine and confederate ? 
9 



130 

I think it clear, then, may it please youi- Honors, without farther tax- 
ing 3^our time, that the offense, under this sixth count, in connection with 
the iii'st, might have been charged in the fourth count. It would be 
aspersing the intelligence of Congress to suppose — it would be libelling 
their sense of duty — that they intended to leave to the prosecution to 
select whether they would punish the same act as a misdemeanor or as a 
felony. When, by the fourth Section, they made it a misdemeanor, did 
they intend, by the sixth Section, or any other Section in the Act, to make 
the same offense or any other a felony, so as to give to the counsel for the 
Government the privilege of choosing u'^ider which of these Sections they 
would frame their indictment, leaving to them to decide whether a citizen 
of the United States is to be held guilty of a felonious offense instead of 
being held responsible for a misdemeanor ? Why, it seems to me, the ques- 
tion offers its own answer. Well now, supposing, may it j)lease your Hon- 
ors, that they could not appropriate the sixth Section, or give effect to the 
sixth Section in any other way, as far as that part of the fourth Section 
is concerned, than to substitute it for the fourth Section, 3'our Honors, 
I think, would be bound to conclude that, as they did notkndw, could not 
tell, under which of these Sections the Government intended to punish 
the offense, that you will take the lesser punishment which the law pro- 
vides for the same offense. Even then, if it were true that no application 
of the sixth Section could be made vvhich does not cover the ground em- 
braced in the fourth Section, your Honors, I think, would feel yourselves 
at liberty, and bound, in pronouncing your judgment for the offense to 
punish it under the fourth Section. But it is not true, may it please your 
Honors, that the sixth Section has no application at all broader than is 
included in the fourth Section. There are a variety of rights — your 
Honors will look at the sixteenth Section of this same statute — a variety 
of rights with which the citizen is clothed by other parts of that statute ; 
a variety of rights, therefore, which may be violated by means of a con- 
spiracy looking to the fourth Section alone. And looking to the sixth 
Section in connection with the subsequent Sections of the same l^w, we 
submit to your Honors that the object of the fourth Section was to punish 
CDmbination — a conspiracy in relation to the exercise of suffrage, and 
that alone; whereas, the object of the sixth Section v»'as to prescribe a 
punishment for a violation of all the rights, other than that of suffrage, 
contained in the law. As my colleague reminds me, it not only states, 
specifically, other rights than the right of suffrage, which are to be pro- 
tected by force of the sixth Section, but it re-enacts and adopts the Civil 
Rights Bill. And doing so, then all the rights secured by the Bill, known 
as the Civil Rights Bill, as well as the riglits specifically contained in the 
sixth Section, fall under the shield of the sixth Section ; whereas the 



131 

fourth Section deals alone with the violation of the suffrage contained in 
the first Section. 

I have said all that I jiropose to say upon that point, may it please 
your Honors. 

Now, a word or tv/o upon the eleventh count. My brother, the Attor- 
'ney General, says that we are estopped here. In the first place, an estoppel 
in criminal cases is something new. How are we estopped ? Yv"e are 
estopped, he says, by having pleaded guilty to the eleventh count ; and 
that count charges what? That we then did, in that way, punish, or con- 
spire to ])uni3h, the party upon whom the conspiracy was intended to 
operate for his support of a gentleman, by the name of Wallace, as a 
member of Congress. Your Honors are bound to know something judi- 
cially, or, in the language of the book, take judicial notice of some facts. 
You are, therefore, bound to know that th« election, at which Mr. Wal- 
lace was a candidate for Congress of the United States, was in October, 
1870. The Act of 1871 was passed on the 20th of April. My friend, the 
District Attorney, charged the ofifense in that count to have been com- 
mitted on the 21st, a day after the law was passed. Was it ? Novp what 
have they said ? Mr. I^istrict Attorney has said, in the presence of 
your Honors, speaking officially, that the conspiracy was on the 22d of 
March, 1871 ; that is, before the law was passed — the very Act, I mean, 
that was before tlie law was passed. Well, now, standing there,' may it 
please your Honors, a lawyer, and everybody else, would say at once : 
Then the law is invalid, because it is ex post facto. There was no erimi- 
ualityMn that act — recognized, I mean, by any law of the statute books, 
or anywhere else. 

It may have been wrong; an outrage upon an individual man; but it 
was no oftense against the peace and dignity of the Government of the 
United States, since the Government did not make it an offense until a 
month after the alleged oifeuse was committed. How are you goixig to 
punish that ? Oh, say my brothers, you are to punish it, because con- 
spiracy is always a continuing act. Then, I suppose, it goes on still. I 
suppose, therefore, that any man who is alleged to have been initiated 
into the conspiracy two years ago, or one year ago, or ten years ago, might 
be punished now, and punished at all times. Once a criminal, he is for- 
ever a criminal ; once combined to prevent a man from voting, or to 
punish him for having voted, although he never attempted to oppose his 
right to vote, or never punished him for having voted, he may, at any 
time that Mr. District Attorney thinks proper, be called upon and pun- 
ished, upon the ground that the conspiracy lives on, although the object 
of the conspiracy is at an end — a conspiracy without an object. My 
friends will pardon me for saying it is an absurdity. A conspiracy to 
effect some object not criminal is equally absurd. There, then, caii be no 



132 , 

conspiracy AViiich the law can punish, except as a conspiraey existing at 
the time the indictment is found, for the purpose of accomplishing some 
illegal end. 

Now, the individual act, which is that of having inflicted a beating, an 
assault and battery upon this man, for his support of Wallace, in 1870. 
The time is past, the end is accomplished. My brothers say that it is 
true the time is passed ; nothing can be done injurious to the public be- 
cause the conspiracy has expired, but still they have a right to drag him 
before a Court of criminal jurisdiction, and punish him, because once in 
his lifetime he was found combining, confederating and conspiring with 
others to do an illegal act. Can the doctrine revive, njay it please your 
Honors, of constructive treason, which so long dishonored England? 
which cameso near bringing to the block many of the patriotsof the day 
in that kingdom? ceased to ha^e the support of the intelligent and spirited 
Judges of England, aided by the burning eloquence of those men who 
fjgured and won immortal fame in defending those who had been charged 
with treason ? But this is even worse than constructive treason. Their 
finding in a man's chamber any written article which looked to a purpose 
of revolutionizing the Government — any writteij article which looked to 
the establishment of a republic — which libelled the majesty for the time 
being — he was considered guilty of treason, because, when he wrote the 
article, he must have contemplated the act. That was not the doctrine 
of the Court. Horn Tooke and Hardy, and the rest, whose trials shed 
such immortal lustre upon the Court, and upon the advocates concerned 
in the defense, were kept unwhipped of justice, not because they ought to 
have been whipped, but because justice demanded that they should not 
be punished, not having committed an offense known to the laws. But 
this is worse. Here, what they have done, Avhat these men are charged 
with having done, is not conspiracy to accomplish an object. At the 
time when this particular count was charged, it was impossible for tliem 
to conspire and combine to accomplish it, because the object, in the na- 
ture of things, could not be accomplished at all. 

I have said, I believe, may it please the Court, all that occurs to me, 
and I submit it in behalf of these persons whom we represent, and in be- 
half of my colleague, that the only judgment which you can pronounce, 
is the judgment the fourth Section prescribes for the offense of such a 
conspiracy as is charged in this indictment. 

Judge Bund. Gentlemen, we vv'ill determine this question when we pro- 
nounce the judgment of the Court on the indictment, and not now. 



133 

Columbia, December 28, 1871. 

Daring an interval in the regular proceedings, the Court passed 

Sentences 

- On the prisoners Sherod Childers, Evans Murph}-, Hezekiah Porter 
and William JMontgomery. As each prisoner arose to receive his sen- 
tence, he was interrogated closely by the presiding Judge as to his con- 
nection with the conspiracy. 

Sherod Childers. 

Q. (by the Court). Childers, what have you io say for yourself in 
mitigation of your punishment? 

The prisoner did not reply. 

Q. Where do you live ? 

A. In York County. 

Q. How old are you ? 

A. Twenty-three years old. 

Q. When did you first join thelvu Klux Klan ? 

A. Joined at the election. 

Q. Who was Chief of your Klan? 

A. Aleck Smith. 

Q. Hov? many raids have you been on ? 

A. That one, sir. 

Q. Which one? 

A. That one — that Amzi Raiuey. I had to join. I voted the Radical 
ticket, and I had to join in that way. 

Q. What did you do to this man Rainey ? 

A. I didn't do anything to him at all. 

Q,. What Avas done to him ? 

A. Nothing, as I seen. I wasn't up to the house. 

Q. Where did you start from to go there ? 

A. I started from Bullock's Creek Bridge, but didn't start with the in- 
tention of going there at all. I don't think it was the intention of the 
crowd to go there. 

Q. AVhom did you meet at Bullock's Creek Bridge ? 

A: Allen Crosby, Sylvanus Hemphill, Evans Murphy, Ki Porter, I 
think, is all that I met there. 

Q. How did you chance all to meet at the bridge that night ? 

A. Van Hemphill brought me word to meet there. 

Q. You met for the purpose of going on a raid? 
■ A. Not to go there ; we didn't. 



134 

Q. You met to go on some raid ? 

A. We met to go ou the raid ; but uot to go there. 

Q. What raid were you going on ? 

A. None in particular. We ■was just going out in the country that 
night. That is what he told me. 

Q. What did you think they were going to do ? 

A. I didn't know. 

Q. You went to do anything that you were told to do ? 

A. We were not told to do anything. 

Q. What did you meet at the bridge for ? 

A. They told me to meet the Klan there ; and I met. • 

Q,. Wliat were the Klan going to do ? 

A. They didn't tclhme. 

Q. I want you to tell me now all about this thing ? 

A. I am telling you the truth. 

Q. You went to meet the Khm for no purpose Avhatever? 

A. Not as I heard of. 

Q. What was the business of the Klan — v.'ere you in disguise ? 

A. No, sir ; not when I went ; I was in disguise after. 

Q,. What did you disguise yourself for? 

A. That was the rule of the order, for men to disguise. 

Q. What were they going to do ? 

A. I didn't hear anything, sir, they was going to do then, at all. 

Q. Then you met and put on disguises, and then you took them off, 
and went home? 

A. No, sir ; we didn't take them off. 

Q. What purpose had you; were they going to do something wrong? 

A. None that I heard of; didn't hear we were going to do any- 
thing wrong. 

Q,. What purpose had you in disguising yourself? 

A. I cau't tell. 

Q. Did you go to Rainey's? 

A. I went to where Kainey lived, on the plantation. 

Q. What was done to him? 

A. I was not at his house. 

Q,, Can you reafl and write? 

A. No, sir ; I can't read and Avrite. 

Q. What do you follow for a living? 

A. Farming. 

Q. Do you work for yourself? 

A. Yes, sir. 

Q. Have you a family ? 

A. Yes, sir. 



135 

Q. What family have jou? 

A, I have my wife and one child. 

Judge Bond. Childers, in consideration of the fact that you have 
pleaded guilty, and shown to the Court by that that you have a mea- 
sure of repentance, the Court will not be as severe as it would be 
otherwise. You have not told me the truth, though ; you were in the 
Big Billy Wilson raid, too. The witnesses on the other cases have so 
stated. The judgment of the Court, in your case, is that you be fined 
one hundred dollars, and be imprisoned for the term of eighteen 
months. Sit down. 

Williavi Montgomery. 

Q,. (by the Court). Where do you live ? 

A. In York County. 

Q, How old are you? 

A. I am going on nineteen. 

Q. Can you read and write? 

A. I can read print, but I can't write. 

Q,. Were you in the Confederate army? 

A. No, sir ; I was in no army at all. 

Q,. What raids have you been on ? 

A. Well, I was on the raid that they got me on — the Amzi Rainey. 

Q. That the only raid? 

A. That is the only raid that ever I was in. 

Q. '^^'^hen did you join the KJan ? 

A. I joined it in February, some time. 

Q,. What did you do on this Rainey raid ? 

A. I never done anything ; I staid with the horses. 

Q. All of you staid with the horses, didn't you ? 

A. I staid with the horses. 

Q. Who beat Rainey ? 

A. Nobody, as I know of. 

The Court inquired of the District Attorney whether he had any 
facts relating to the prisoner, saying : " I don't think we can get them 
out of him." 

Mr. Corbin replied that he was not aware that tlie j^risoner had 
been in any other raid, and added: "I would state to the Court that 
there were some eight or ten persons whipped that night. Amzi Rainey 
was the only person specified." 

Q. (b?/ the Court). Where did you go to from Amzi Rainey's? 

A. I Avent home. 

Q. Didn't go with other expeditions the same night? 

A. No. 



136 

Q,. Nothiug was clone to Rainev ? 

A. Nothing, as I know of. I didn't know where Rainey lived, nor 
anything about it. 

Judge Bond. Montgomery, the judgment of the Court, in your case, 
is that you be fined one hundred dollars, and be imprisoned for eigh- 
teen months. 

Evans Murphy. 

Q. (by the Court). AVhat have you to say to the Court in mitiga- 
tion of your punishment? 

A. I don't know that I can say anything. 

Q. Where do you live? 

A. In York County, 

Q. What is your business? 

A. Farming. 

Q. Do you farm for yourself? 

A. Yes, sir. • 

Q. What family have you ? 

A. I have seven, besides myself. 

Q. How many children ? 

A. I have four children and sisters-in-law. 

Q. How many raids have you been on? 

A. Never been on but that one. 

Q. How many people were whipped that night ? 

A. I don't know ary one ; I never saw ary one whipped at all. 

Q. You held horses? 

A. No, sir ; I didn't hold any horses. 

Q. What did you do? 

A. I didn't do anything myself, nor I didn't see anything done ; I 
never saw anybody struck that night ; I don't think there was ary 
lick struck ; if there was, I wasn't in it. 

Q. Plow many of you were there that night? 

A. There were nine. 

Q. How many horses can one man hold on a raid ? 

A. One man held them all that night. 

Q. What did the rest do? 

A. I don't know what they all done ; I didn't do anything myself. 

Q. Do you know anybody. that did do anything? 

A. No, sir ; I did not ; I was not Avith them. Some say that the 
party went to Raiuey's; I was not there. 

Q. Did they go anywhere else ? 

A. No, sir ; we went from Rainey's back home. I have never been 



137 

at the house. I didn't know where Rainey lived, myself. I don't 
know where his house is. ' 

Q. Did they tell you anything about it, when they came back? 

A. No, sir; they never said they had done anything. They run off 
and left me, and several others, Mr. Kirkpatrick and James Pursely and 
Allen Crosby, and, I thinji, Childers and Porter. They all got off, and 
left us, ^Ye didn't know anything about where they went. 

Q. "Whom did they leave ? 

A. Me, and Childers, and Allen Crosby, and Kirkpatrick, and James 
Pursely, and Porter. 

Q. It turns out that those who happen to be indicted didn't do any- 
thing, and all those that haven't been caught, did the whipping ? 

A. If there was any whipping done, I didn't know it ; nor I heard of 
none being done. 

Q. "What did you go there for ? 

A. I can't tell ; I didn't hear anything ; I didn't know they were 
there. 

Q. What did you go there for ? 

A. I didn't know they were going there. 

Q. "What did you go for ? 

A. I was going home from work and met up with them, and they 
asked me to go along ; said they were going to ride around a piece that 
night; didn't say for what pui'pose, nor I didn't ask them. 

Q. You didn't want to know, I suj^pose ; what did you go back for ? 

A. To go home. 

Q. Had you ridden far enough ? 

A. I suppose so ; the crowd turned back, and I had to. 

Q. Had a pleasant ride in the evening, and then returned ? 

A. I don't know whether it was very pleasant er not ; we r&turued 
home. 

Mr. Hart, I think your Honor misunderstood the prisoner about the 
parties whom he names as being present as being only those indicted in 
this case who are absent. I understood him to say that Allen Crosby, 
himself, Porter and Childers, were those who were left behind. Mont- 
gomery is indicted and here — 

Judge Bond. Montgomery only held the horses, though. 

Q. (by the Court). Can you read and write ? 

A. Not much — a little. 

Q. What is your name ? 

A. Evans Murphy. 

Judge Bond. The judgment of the Court is, in your case, that you be 
fined one hundred dollars, and be imprisoned for eighteen months. 



138 
Hezelciah Porter. 

Q. (by the Court). Where do you live? 

A. In York County, sir. 

Q. How ©Id are you ? 

A. I am nineteen years old. 

Q. How many raids have you heen on ? 

A. One, sir. 

Q. What raid was that ? 

A. On Rainey. 

Q. What was done to Rainey ? 

A. I don't know, sir, as there was anything done. 

Q. Where did you meet the raiding party? 

A. I met with them down there at Bullock's Creek Bridge. 

Q. What did you go there for ? 

A. I was warued to go there. 

Q. By whom? 

A. Sylvanus Hemphill. 

Q. Who was Chief of your Klan ? 

A. Aleck Smith. 

Q. Who was Chief in your County ? 

A. I don't kuovr, sir. 

Q. When you got to the bridge, what did you do? 

A. We disguised and went off, on across the bridge ; I reckon they 
went to Rainey's. 

Q. What did you do when you got to Rainey's ? • 

A. I didn't go there. 

Q. How far did you go ? 

A. I went down to the bridge, and then across the branch up in the 
old field. 

Q. What for? 

A. We were hunting for the other fellows; they went off and left us. 

Q. Anybody else whipped that night ? 

A. No, sir ; not that I know of 

Judge Bond. From the fact that you have pleaded guilty, the judg- 
ment of the Court is, that you be fined one hundved dollars and impris- 
oned eijrhteen months. 



Part II. 



THE CASE OF JAI\IE3 WILLIAM AVERY, JAMES EUFUS 
BRAXTON, AND OTHEE^. 



Columbia, December 9; 1872. 

Mr. Corbin moved to enter a nol. jrros. iu tlie case of the United States 
ao'aiust James Rufiis Bratton and others, against whom a bill of indict- 
ment had been found — the grand jury having presented two other bills 
against the same parties. 

Mr. Johnson. What was the original bill? 

Mr. Corbin. The original bill was against James Rufus Bratton and 
others, in which' murder was charged, and, in lieu of this, I have pre- 
sented to the grand jury two bills, and they have brought them in ; one 
charges murder and the other does not. I make the case of murder as 
agreed upon — that is the case of James William Avery. In that the 
first count is the same as in the original indictment. 

Mr. Johnson. We want copies. 

Mr. Corbin. We will furnish you with copies in the Avery case. The 
grand jury also presented a bill against Robert Hayes Mitchell and 
others. Y\fe are ready to go to trial in this case. It is the same as I 
presented the other day. The same parties that were indicted for mur- 
der ; but we have omitted the murder counts. 

Mr. Johnson. We want to try the murder case now. 

Mr. Corbin. There is no objection to going on with the case in whicli 
there is no murder charged. 

]\Ir. Stanbery. It is contrary to the agreement. 

Mr. Corbin. Not at all. The counsel has not understood me. There 
were thirty-one persons charged in the other indictment that was origi- 
nally presented. We have taken fourteen out of it, and charge tliem 
with murder, as they were charged before. W^e have taken the others 
and indicted them — leaving the murder count out. We are ready, now, 
to go to trial upon that indictment. 

Mr. Johnson. Which indictment? 

Mr. Corbin. The indictment of the same parties, without the murder 
counts. 

'Mr. Stanbery. The agreement between the counsel, in the presence of 



140 

the Court, is a matter wLicIi must be regarded; and the agreement, yes- 
terday, was that the next ease to be called should be the murder case, 
and we have made preparation for nothing else. To go on with another 
case would not only be a violation of the agreement, but it would be im- 
possible for us to commence without further preparation. 

Mr. Corbin. But, if the counsel desire, I will call up that murder case. 
I don't care wdiich we try first. • 

Mr. Johnson. The murder case is the case we want. 

Mr. Corbin. I will be accommodativig. 

Mr. Stanbery. We don't want accommodation; we want the agreement 
carried out. • 

jMr. Corbin. We are ready to proceed to trial in the murder case. 
Are you ready ? 

Mr. Stanbery. We are ready. 

Mr. Johnson. Is that the indictment that we have a copy of? 

Mr. Corbin. It is a new indictment, 

Mr. Stanbery. How does it differ from the other? 

Mr. Corbin. It is charged in one count that they did beat him because 
he voted. It is the same thing — only charged in a different way. 

INIr. Stanbery. We want a copy of this indictment ; for murder is a very 
grave offense. 

Mr. Corbin. The counsel insisted on having that case. Now I insist 
on going on. 

Mr. Stanbery. The gentleman is wrong. The case he agreed to call 
up he has nolle prosequied. 

Mr. Corbin. But this case is against the same parties. 

Judge Bond. You can have time to look at the indictment. And now 
we will go on Avith the othfer case. 

INIr. Stanbery. Why, if the Court please, the agreement was to go on 
Vvith the murder case. 

Judge Bond. The agreement was that they would furnish you with an 
indictment, charging murder, in order that you might make your excep- 
tions, and take the case to the Supreme Court. The District Attorney 
has done that, and you say you are not ready ; you shall have such time 
as you require to look at that indictment. Now, there is no reason why 
we should not go on with tlie other indictment. 

jNIr. Stanbery. The District Attorney did furnish us with a copy of an 
indictment containing the charge of murder. The gentleman spoke of 
that as the next case to come on. He has nolle iirosequied that case in 
Avhich we were ready, and presents another containing some of the same 
counts and allegations. The solemn agreement, upon which this plea of 
not guilty was rendered, and our whole proceedings were entered into, 
was that the next case should be the murder case ; and, upon that case, 



141 

we were to niake our jioiut, and not aftervrards to try any case with re- 
gard to murder. 

Judge Bond. He shall not try any case involving the charge of mur- 
der. 

Mr. Stanbery. But, first, we want the murder CRi-Q. 

Judge Bond. He has brought you a murder case. 

Mr. Stanbery. He has ; and all we ask is simply a reasonable time to 
look at it. 

Judge Bond. You shall have as much time as you want ; but that 
need not prevent us from going on with any other case. 

Mr. Johnson. I should like the Attorney, may it please your Honors, 
before deciding finally whether to take up the murder case or not, to tell 
us, as briefly as he can, how the indictment upon which he proposes to 
go to trial differs frOm the indictment which ho has disposed of to-day 
by nolle prosequie. 

Mr. Chamberlain. If the Court please, I will state, as briefly as pos- 
sible, how this indictment is now drawn ; wherein it difters from the origi- 
nal indictment, which contained a charge of murder. The Court held 
the first count of the original bill good, but held the second count bad, 
and the second count was repeated in the third count with murder added. 
We have, therefore, omitted that bad count to which the murder count 
was added, and b-ave added the murder count to the first count, which 
was held to be good ; and those two, therefore — the first count precisely as 
it was before, and the first count, with murder added — constitute the 
second count. The Court then- held that the sixth count, in the original 
indictm(*nt, which I will now turn to, vvhich charged that a conspiracy, 
Vvith intent to injure, &c., Amzi Rainey, because of his free exercise of a 
right and privilege, &c., would have been good if it had been drawn with 
the particularity of the first count. We have, therefore, drawn a new 
couut,*with the particularity added that is contained in the first count, 
and that constitutes a new count, based upon the decision of the Court 
in the first indictment ; and that count I will read, with the permission 
of the Court: 

"And the jurors aforesaid, upon their oaths aforesaid, do further pre- 
sent, that James William Avery and others, together with divers other 
evil disposed persons, to the jurors aforesaid as yet unknown, late of 
York County, State of Soutli Carolina, at York County, in said District, 
and within the jurisdiction of this Court, on the sixth day of March, 
1871, unlawfully did conspire together, with intent to injure, oppress, 
threaten and intimidate Jim Rainey, aliati Jim AYilliaras, a male citizen 
of the United States, of African descent, above the age of twenty-one 
years, qualified and entitled by law to vote at any election by the people 
in said Count}^ District and State, because he, the said Jim Rainey, alias 



142 

Jim Williams, did exercise the right and privilege of voting at an elec- 
tion hy the people in said County, District and State, held on the third 
'\Vednosd;iy of October, Anno Domini 1870, contrary to the Act of Con- 
gress, in such case made and provided, and against the peace and dignity 
of the (Jnited States." 

That constitutes the whole indictment. 

Mr. Johnson. Read the count that alleges murder. 

Mr. Chamberlain. The count which contains the charge of murder, 
charges the parties named James William Avery and others, with a con- 
spiracy to violate the first Section of the Act, and then, " the jurors afore- 
said, upon their oaths aforesaid, do further present, that James William . 
Avery and others, late of York County,'' etc., " did make an assault,"' 
e'c, "and the said James William Avery and others, a rope around the 
neck of the said Jim Williams, a/?'as Jim Rainey ." 

]Mr. Johnson. Is that a copy of the other ? 

Mr. Chamberlain. It is. 

Mr. Johnson. Well, you need not read it then. 

Mr. Chamberlain. It is the same, only it does not contain so many 
names. 

Mr. Stanbery. How does it conclude? 

Mr. Chamberlain. Against the peace and dignity of the State of 
South Carolina. It is the same, only we have attached it to a good- 
count, instead of to a count which the Court decided to be bad. There 
is also another count, in which we charge that they conspired with intent 
to oppress, threaten and intimidate, in order to prevent his free exercise, 
etc., to wit : the right to keep and bear arms, contrary to the Act of Con- 
gress ; and to that, also, is added the same charges. So that the murder 
charge is repeated twice — it is in two counts. 

Mr. Stanbery. I think, if tlxe'Court please, that v;e can make our 
points ; may send the case to the Supreme Court on that indictmeift. 

Judge Bond. It will take you Some time to do that. 

Mr. Stanbery. A little time ; yes, sir. I have stated, if the Court 
please, they only have to be the points upon which the certificate of divi- 
sion shall be certified, and will read them, that the Court may make any 
amendment that may be necessary. 

Mr. Stanbery read a number of points, on which the Court were 
desired to certify a difference of opinion. 

Mr. Corbin. I don't understand that there is any division of opinion, 
except upon whether the murder can be tried in connection with the two 
counts. 

Judge Bryan. That is the understanding. 

Mr. Stanbery. The Court will send up such points as they consider 
proper, to have the instructions of the Supreme Court upon. 



143 

Judge Bond. We seek no advisement upon these points ; only on the 
murder counts. 

Judge Bryan. We desire advisement iu regard only to that. It is a 
question of very great consequence to the citizen and Government. 

Mr. Stanbery. As to the empannelling of jurors — that is a vital point. 

Mr. Chamberlain. The Court expressly decided that you were entitled 
to ten jDeremptory challenges. 

Mr. Stanbery. They have not agreed upon that opinion. 

Judge Bryan. My brother would rather you would exercise the chal- 
lenge than to have you go up on that question. My brother yields on 
that point. 

Mr. Johnson. T\Iay it please your Honors, I knovr that the Court are 
not divided upon several of the questions which they are requested, by 
that statement, to divide upon, but that the division was only as an- 
nounced upon the points which arose upon the third count, which con- 
nected the offense of burglary with the principal offense of violating the 
other provisions of that Act. I rise merely for the purpose of saying 
that, although the Court were not divided at that time, upon any ques- 
tion, other than the one upon which they say now they were divided, I 
hope the Court will keep the matter open, so as not to prevent us from 
asking the Court to give us an opportunity to show that they ought to 
divide upon other points. If we can satisfy your Honors that there 
should be a division upon other points, the Court;, I am satisfied, would 
Avillingly divide upon such points ; but, as the case now stands, we are 
not advised that the Court v,ill divide upon any other question than the 
question which arose upon the murder count. I only vrish the Court to 
understand, now, that when we come into Court we may think it our duty 
to urge the Court to the propriety of dividing upon other questions. 
Whether we succeed or not, is a matter the Court will dispose of here- 
after. 

Judge Bond. It is. 

Mr. Stanbery. I suppose, if the Court please, that by Monday we can 
b 3 ready to present the point upon which you may certify the division, 
though I have already stated to your Honors the point, as I supposed it 
was ; but whether it is satisfactorily stated, I am not well aware. 

Judge Bond. I do not think you stated the point clearly. 

Mr. Stanbery. Will your Honors allow us until Jlonday to state the 
point? 

Judge Bond. Yes, sir. 

Mr. StanJDery. If the Court please, we have a matter to take up now, 
and we shall ask until Monday to get our witnesses, &c., and to prepare 
for this new indictment. A^^e can occupy the Coui't with a very impor- 
tant matter, with regard to the case disposed of yesterday. 



144 

Mr. Corbin. In arrest of judgment ? 

Mr. Johnson. To show what judgment should be pronounced. 

Mr. Stanbery. Which Section of the Act shall apply ? 

Judge Bond. Are there any witnesses summoned in this case you now 
propose to try ? 

Mr. Stanbery. Certainly ; we have a dozen. 

Judge Bond. I mean for the defense. 

Mr. Hart. I would state to your Honors, in answer to that question, 
that, until we see what names we included in the indictment, we, per- 
haps, cannot answer the question fully. Sevei'al witnesses have been 
summoned, but they are summoned for individuals charged in the in- 
dictment, and do not reach, perhaps, the merits of the indictment gene- 
rally. 

Mr. Johnson. As is stated by my colleage, may it please your Honors, 
the question which we propose to discuss, upon the case which has been 
disposed of by a j^lea of guilty, is, what is to be ^he character of the 
judgment the Court will pronounce upon that plea of guilty, whether it 
is to be a judgment only for a misdemeanor, and punishable^ by the 
lighter punishments i)rovided for misdemeanors, or whether it is to be 
the punishment which the law provides shall be passed upon all who 
conspire in such a Avay. We think we can satisfy the Court that the 
only judgment is the one which the law provides for the commission of 
what it calls a misdemeanor ; that will take some time — if the Court 
will permit us to go on now, and give us an opportunity of coming into 
Court on Monday, prepared to defend ourselves against this new indict- 
ment. 

Judge Bond, Mr. District Attorney, can you employ the grand jury 
to-day in finding indictments more rapidly than they have done ? 

Mr. Corbin. The grand jury have been dela^yed in .finding bills, be- 
cause both of the attorneys have been detained in Court to argue these 
preliminary questions. We can present, perhaj^s, twenty bills on Mon- 
day, if the Court desire it. Another rea'son for delay, was that we did 
not v;ish to proceed with finding indictments while the indictments were 
under discussion before the Court. 

Mr. Johnson, {sotto voce). We do not want any more found. 

Mr. Corbin. You do not? Very well. Counsel en the other side do 
not complain, your Honors. 

After arguments on the measure of punishment had been made in the 
case of Allen Crosby and others, the Court inquired of Mr. Corbin if he 
had any further business. 

Mr. Corbin. We are ready to proceed in the case of James William 
Avery. 

Mr. Stanbery. If the Court please, the District Attorney says he is 



145 

ready in the murder case. In the murder case I have filed a motion to 
quash three counts in the indictment, which charged murder in addition 
to the other matters; these are points upon which the Court agreed to di- 
vide, I believe it was understood that the Court would not have any 
more argument. 

Judge Bond. We will not have any more argument upon the point. 

Mr. Corbin. We understand the Court that, upon those counts — the 
second and fourth — the Court is divided in opinion, and will certify that 
difference to the Supreme Court, and, in the meantime, the trial will be 
stayed ? 

Judge Bond. Yes, sir. 



10 



Part III. 



THE CASE OF ROBERT HAYES MITCHELL, SYLVANUS 
SHEARER AND OTHERS. 



Columbia, December 11, 1871. 

Mr. Corbin. If the Court please, we are ready to proceed in the case 
of United States against Robert Hayes Mitchell and others. The Clerk 
"will empannel the jury. 

Mr. Johnson, Wait until we have seen the indictment ; you hurry up 
the indictments too quick. 

Mr. Corbin. It is high time somebody should hurry up here. 

Mr. Johnson. I think so too ; when you were out of Court for an hour 
yesterday. Is there any other felony charged ? 

Mr. Corbin. No felony against the State laws. 

Mr. Stanbery, (looking at the indictment). The second count has al- 
ready been declared bad by your Honors. [To Mr. Corbin.] Do you 
want to put me to the necessity of filing another motion to quash that 
coun ? 

Mr. Corbin. I have never heard a motion on that subject. 

Mr. Stanbery. But you have on that subject in the other case. 

Mr. Corbin. No, sir ; the question has not been raised at all — " the 
right to keep and bear arms." There was no such allegation in the other 
indictment before the Court. 

Judge Bryan. I think not. 

Mr. Corbin. You are thinking of " unreasonable searches and seiz- 
ures." 

Mr. Stanbery. And you think the " right to keep and bear arms" is 
secured by the Constitution ? 

Mr. Corbin. We do ; and propose to fight for it to the last. 

Mr. Stanbery. Well, consider a motion made to quash that count. 

Mr. Corbin. Well, write out your motion, and hand it up. 

Mr. Stanbery. If the Court please, it is agreed that we make a formal 
motion to quash, when we make the objection to the second count of the 
indictment now presented for trial. Your Honors have held that the 
right to be secure from searches and the right to the free enjoyment of 
all the privileges secured by the Constitution of the United States do 



. 147 

not make any offense under these laws; and the right to l)ear arms, I sup- 
pose, is not secured by the Constitution of the United States, but stands 
in the nature of a bill of rights. It is a restriction upon Congress against 
interfering with that right. It is one of the rights of the State. 

Mr. Johnson, (sotto voce). Tell the Court we make the point. 

Mr. Stanbery. Oh, of course, tliat is understood. It is understood that 
we are to draw the motion in form afterwards, but not to take time to 
draw it now. , 

Judge Bond. Go on, take your jury, Mr. Corbin. Mr. Clerk, impan- 
nel the jury. 

Mr. Stanbery. The District Attorney waived the hearing of the motion 
no-\v, and gave me the right to make the motion ope tenus. That must be 
decided before we have the jury sworn. 

Mr. Corbin. Go on, if you have anything to say. 

!Mr. Stanbery. I have stated to the Court all I care about. I have 
said all I intend to say about it. 

Mr. Corbin, If the Court please, if there is any right that is dear to 
the citizen, it is the right to keep and bear arms ; and it was secured to 
the citizen of the United States on the adoption«of the amendments to 
the Constitution. That amendment, like the other amendments to the 
Constitution, has never been held to be a restriction, only upon Congress 
or upon Federal power; but the same argument, probably, which was used 
by the Court, in'the case against Baltimore, that the amendments were 
intended to be a restriction upon the United States Congress, may apply 
to it. In other words, the right of the citizen was not to be encroached 
upon by Congress — that those amendments did not restrict the States. 
But, if the Court please, the fourteenth amendment changes all that 
theory, and lays the same restriction upon the States that before lay upon 
the Congress of the United States — that, as Congress heretofore could 
not interfere with the right of the citizen to keep and bear arms, now, 
after the adoption of the fourteenth amendment, the State cannot inter- 
fere with the right of the citizen to keep and bear arms. The right to 
keep and bear arms is included in the fourteenth amendment, under 
" privileges and immunities." 

It seems to me that there can be no doubt about this ; the right to keep 
and bear arms is a privilege of a citizen of the United States — was before 
the adoption of the fourteenth amendment ; after the adoption of the four- 
teenth amendment, that privilege was secured to the citizen as against the 
State. Now, the Act of Congress on the 31st of May, 1870, attempted 
to secure that right. It is attempted to punish combinations and conspira- 
cies that l-^ave for their object to interfere with the rights of the citizen, se- 
cured by the Constitution of the United States. But the distinguished 
counsel on the other side say this amendment stands on the same footing 



148 

■vvitli the others. The Court have said that the right to be secure from 
unreasonable searches and seizures was a right at common law. Conse- 
quently, the Constitution of the United States did not secure it — it ex- 
isted before. IS'ow, will this Court say — will the distinguished counsel 
pretend to argue to this Court: — that the right to keep and bear arras was 
a right spcured at common law? Certainly not. Such a right never 
existed at common law, modified common law, or anything else. 

This is a distinct right, secured by the Constitution of the United 
States ; and, for the first time in the history of the world, except in the 
case of the protestants of England, it was secured to a certain class of 
citizens in England by Act of Parliament. That itself is sufiicient to 
negative the presumption, or rather the assumption, that it was a right 
secured by common law. In the amendments to the Constitution, the peo- 
ple, in their wisdom, saw fit to insist that this right should be put. It 
was never guaranteed or granted before. I do not, therefore, desire to 
take up the time of the Court to argue this question, for it appears to me 
to be a question as clear as it is simple, that it is a right guaranteed to the 
citizen by the Constitution of the United States, both as against the Con- 
gress of the United States and as against the State. 

Imagine, if you like — but we have not to draw upon the imagination 
for the facts — a militia company, organized in York County, and a com- 
bination and conspiracy to rob the people of their arras, and to prevent 
them from keeping and bearing arms furnished to them by the State 
Government. Is not that a conspiracy to defeat the rights of the citizen, 
secured by the Constitution of the United States, and guaranteed by the 
fourteenth amendment ? Is not that right intended to prevent the right 
secured by this Act of April, 1870 ? If it is not, may it please your 
Honors, then this Act means nothing, and we desire to know it at 
once. 

Mr. Johnson. It would have been as well if my brother, the District 
Attorney, when he vindicated the particular legislation under the four- 
teenth amendment of the Constitution, had read the amendment. I un- 
derstand him now as broadly admitting that, under the Constitution, as 
it stood before the fourteenth amendment was adopted, such legislation as 
this could not have been legally had. 

Mr. Corbin. I did not admit that. 

Mr. Johnson. I thought you did. I thought you believed it under the 
fourteenth amendment. 

Mr. Corbin. I say that, under the fourteenth amendment, that right is 
guaranteed to the citizen. 

Mr. Johnson. -I thought he admitted it. But, whether he did or not, 
it is perfectly clear that, as the Constitution stood antecedent to the four- 
teenth amendment, such legislation as this would have been invalid — as 



149 

not authorized. Novv% I should like to know how the fourteenth amend- 
ment changes the power of Congress? Your Honors have it before you ; 
my recollection is, that it makes every man a citizen who may be born in 
the United States, without reference to his color, race or condition, or 
who may have been naturalized by the United States ; and the States are 
prohibited from taking from him any privilep;o or immunity thus 
guaranteed to him. Now, what is that? I suppose it is one of the 
immunities that a citizen of the United States is entitled to, that he shall 
be protected against seizures and searches for papers. And your Honors 
have decided that the count charging us with conspiracy to defeat that 
right is not authorized by the fourteenth amendment. 

Now, if that right is not authorized by the amendment, upon what 
ground can counsel for the Government suppose that the right which 
exists in the citizen to bear arms can be protected by that amendment, 
for they stand upon the same footing ? The latter is no more a right than 
the former; and if the former, as your Honors have held, is a protection 
only as against the authority of the United States, it necessarily follows 
that the latter is a protection against the United States and restriction of 
their power. In the case of Baron vs. Baltimore, the question, I think 
was, whether the Congress of the United States prohibited Maryland, or' 
the parties who were acting under the law of that State, from appropria- 
ting private property to public use. Now, if there is any right to be 
found in that, or in any other law, common or uncommon, modified or 
unmodified, one would suppose it would be the right to enjoy his own 
property, without the interference of the public, except it should become 
necessary to take it for the public'use, and then only upon full compen- 
sation. But the Supreme Court decided unanimously that, although it 
Avas a right, and right in its nature, independent of statutory regulation 
or expressed law, although it was a right, the provisions of the Constitu- 
tion of the United States, which the counsel in the case never claimed 
protected him in the enjoyment of that right, did not apply, because 
these provisions of the Constitution of the United States, upon which they 
relied, were provisions restrictive of the power of Congress. 

So my brother tells us that the right to bear arms is a right of the citi- 
zen. Where did he get the right to bear arms more than to be guaran- 
teed against unlawful searches, or against the appropriation of his pro- 
perty to public use, without compensation ? What does the Constitution 
of the United States say about bearing arms? Nothing. AVhat does 
the fourteenth amendment say upon the same subject ? Nothing. The 
latter is as silent upon the topic as the former, and if the former cause 
for silence does not cover such a case as this, the latter, for the same 
reason, does not embrace it. 

Now, my brother imagines a case, which shows that he must give lease 



150 

to his imagination to support the hxw. That is a very bad support of the 
law ; for his iraaginati'in, and any man's imagination, would generally 
go beyond the law. He imagines, or supposes, two militia companies are 
authorized to bear arras, and the arms are placed in their hands, I sup- 
pose, by this Government — not by the United States. They had a right, 
says the learned Attorney, to hold on to their arms. So they had, as 
against the Governor or the Government, so long as he permitted them to 
hold them. But, suppose tlie men, in whose hands the arms were placed had 
no more right to bear arms than any of those men in whose hands they re- 
fused to place them. Does not the Act say, that no distinction shall be 
made on account of race, &c'? Does not that place the white man in a 
worse situation than the black man ? Do they not both stand upon the 
same level? Does Mr. District Attorney say that it would have been in 
the power of the State Government to deny to the white citizens the right 
to bear arms ? 

Mr. Corbin. I do say that the State of South Carolina cannot 
do it. 

Mr. Johnson. It has done it. Cannot do it ? Wh}', we would be in 
a sad condition were it so. A band of ruffians combine together to burn, 
pillage and murder all, from the cradle to the grave. Indulging 
in imagination, which, according to the District Attorney, is a fair 
isource of authority, they want arms to protect themselves against the 
further progress of the outrages. The women and children are alarmed ; . 
the Governor either refuses to interfere, or seeks to get the arms out of the 
hands of the militia, but does not succeed. Terror fills the whole region. 
No man knows, when he retires to his ret^t, what may be the fate of his 
house, or that of his wife and children. Has not the State, in a case like 
that, the right to take the arms from the militia company ? I think there 
can be no doubt of that. And if the right exists to take the arms out of 
their hands in such a case as that, then it is because the right to bear arms 
is not a right given by the Constitution of the United States ; bat exists 
under the local law of the State. 

Why, may it please your Honors, there are a thousand rights whid* 
may be restrained in part, modified m part, or annulled; but wi-c^.ier 
they are to be restrained, modified or annulled, depends upon the in- 
quiry: does the public safety demand it? Now, I have supposed that, 
in this particular case, this man, who has, by this conspiracy, been denied 
the right to bear arms, was himself one of the leaders in the acts of vio- 
lence, and the communication of these threats, which were calculated, 
not only to fill the breast of a brave man with alarm, but to fill the minds 
of his wife and children with terror, if not calmed, might, sooner 
or later, result in insanity. Has he a right to bear arms? He has. It is 
an absolute right, secured by the Constitution. I submit, therefore, to 



151 

your Honors, that, whether decided by the words of the Constitution as it 
originally stood, or by the words of the fourteenth amendment, or de- 
cided by general considerations, which addressed themselves to the judg- 
ment and the heart, the right to bear arms is a modified right, and it is 
for the State, iu the exercise of its own judgment, in the discharge of the 
obligations imposed upon them by their ow^n sovereignty, to decide 
Avhether all men in the State shall be permitted to bear arms, to the ter- 
ror of all women and children of the land ; or whether any particular 
class should be permitted to bear arms, and every other class denied the 
privilege. I speak it with no disrespect to the colored man, but is he to 
have a musket placed in his hands and a white man refused it? Now 
that I have supposed what may have been the case, merely for the sake 
of illustration, I have as much right to imagine, though my wings may 
not be as strong as those of ihe gentlemen on the other side, but I can 
very well conceive, and the heart of every man will lead him to that con- 
clusion, that to permit one class of citizens to bear arms, and to practi- 
cally deny them to the other, is to place that other in subjection to the 
former. And that would be tyranny unbearable and^utterly abhorrent to 
every principle upon which our institutions rest, and in conflict with 
the best considered rights of the other citizens ; the right of the freeman 
to protect himself against aggression ; the right of a freeman not to be 
subject to aggression by a class whose interests, or supj^osed interests, it 
may be to wipe them off* from the face of the earth, unless, may it 
please your Honors, that it be held to be within the authority of the 
United States Government. 

I hazard nothing in predicting that the day will come when our insti- 
tutions will totter to their very foundations. " Easier were it to hurl the 
rooted mountain from its base, than force the yoke of slavery upon men 
determined to be free." The black man, it is conceded, is a freeman. 
In the name of justice and humanity, in the name of those rights for 
which our fathers fought, you cannot subject the white man to the abso- 
lute and uncontrolled dominion of an armed force of a colored race. 

Judge Bond. The Court is not ready to determine this question. Is 
the counsel for the Government ready to go on with another indict- 
ment ? I 

Mr, Corbin. There are other indictments here, but they all have counts 
charging conspiracy to deprive citizens of the right to bear arms. That 
is one of the principal things in connection with this conspiracy; it was 
systematically done, and was one of the main objects of the conspiracy — 
to deprive citizens of the right to have and bear arms, as well as to pre- 
vent them from voting. All the cases returned by the grand jury have 
that count, and we will never abandon it until we are obliged to. 

Mr. Corbin called the case of United States vs. R. H. Mitchell, and the 



162 

defendants did not respond. Mr. Corbiu insisted that when defendants 
gave bail they were notified to be present during the entire term of the 
Court, and he wislied it understood that if tliey did not answer when 
called, their bond would be forfeited. 

Counsel for the defense said they had been telegraphed to, and the 
Court replied, if they were not here to-morrow morning, hereafter, 
in all such cases, the bail would he forfeited. 

The Court adjourned till G P. M. * 



EVENING SESSION. 

Judge Bond. xVre the counsel ready to proceed. 

]Mr. Corbin. "We are waiting the decision of the Court on the count as 
to the right of bearing arms ; I might as well say here, that we regard it 
as one of the vital grounds of this prosecution. This right has been 
trampled on again and again in this State, in the most flagrant and syste- 
matic manner. I think, if the right is denied us to prosecute for this 
otFense, that we had better stop. 

Judge Bond. The Court is not ready to give you an opinion on that 
subject now. 

Mr. Chamberlain. There is one other indictment in which that count 
is omitted, but that has been fixed by the counsel for the defense and 
ourselves for to-morrow morning. All the other indictments have iu 
them the count for bearing arms. 

Judge Bond. There is one thing I would like to say to the bar. The 
Act of Congress, which authorizes the Court to summon witnesses on be- 
half of the defense, at the expense of the United States, requires that 
application be made in open Court. Several applications have been made 
to each of the Judges to issue subpoenas to the Marshal to bring in 
witnesses for the defense, but it is not in the power of r':e Court to do it, 
except application be made in open Court. 

Judge Bryan. If there is no other business before the Court this even- 
ing we might adjourn, to go on to-morrow, certainly, with the case which 
has been appointed. 

Mr. Corbin. I do not want the Court to be too certain. I may have 
to appeal to the Court to defer the case, in consequence of the sickness of 
Mr. Wilson, of counsel for the defense. 

jNIr. Witherspoon. I have received a dispatch from Mr. Wilson, an- 
nouncing that he will be here to-morrow. 

Judge Bond. The absence of counsel will not be received as sufficient 
excuse for delaying the proceedings. 

Mr. McMaster. There are, I understand, cases fixed for to-morrow 



153 

raoraiug. When the case was presented by the District Attorney, it was 
altered after the indictment was brought in, and not according to the 
entry ou the docket. The counsel who will appear in place of Mr. Wil- 
son will insist upon the rule being followed of going by the docket, as 
thus only do they know when they will be brought up. When the case 
is on the docket, it cannot be called out of order. 

Judge Bond. The District Attorney is at liberty to call any case where 
an indictment has been found, and the parties are required to be present. 

Mr. McMaster. This is new to us, and is not according to our code ; 
but we will endeavor to be ready in the future. 

Judge Bond. Can you give notice of any other trial ? 

Mr. Corbvn. None, sir, save those that are under consideration by the 
Coui-t, containing the count for interfering with the right to bear arms. 
There is hardly an indictment to be presented that will not contain that 
count. 

Mr. McMaster. As the usage of the Court seems to be different, I ask 
for information : If any case, upon an indictment, can be brought imme- 
diately for trial ; that is, of a person, for instance, who may think there 
is no indictment against him ? 

Judge Bond. A reasonable time will be given. The Court will not 
press the trial in that case, but all who have been indicted have the in- 
formation, and there can be little excuse for not being ready. 

The Court adjourned, to meet on the 12th, at 11 A. M. 



Columbia, December 12, 1871. 

Judge Bond. Gentlemen, are you ready to go on in any cases ? 

Mr. Corbin. We are waiting the decision of the Court in the case of 
the United States vs. Mitchell. 

Judge Bond. The Court is not prepared to decide that case this morn- 
ing. 

Mr. Corbin. Well, if the Court please, we will tear the indictment ta 
pieces, and withdraw that count. We are determined to go to trial on 
something. We ask the Court to withdraw the second count. 

Mr. Johnson. We have done that ; you may save yourself the trouble. 
You enter a nol. pros, on that count? 

Mr. Corbin. Yes, sir ; but do not propose to in any other case. 

Judge Bond. Gentlemen, are you ready for trial ? Call the parties, 

Mr. Johnson. A nol. pros, has not been entered on the count yet. The 
gentleman is scratching it out. [To Mr. Corbin] : Just enter a nol. 
pros. 



154 

Mr. Corbin. Mr. Clerk, the second count is nol. prossed. 

The Clerk then called Robert Hayes Mitchell, Sylvanus Shearer, 
William Shearer, Hugh H. Shearer, James Shearer, Henry Warlick, 
Eli Ross Stewart and Josiah Martin, all of whom stood up and raised 
their right hands. The Clerk also called the name of Hugh Kell, who 
did not answer, and Mr. Corbin stated that he was sick in jail. The 
names of James Neal and Addison Carroll were also called, but they 
were not present. The name of Miles Carroll was also called, but he 
did not answer. 

Mr. Hart. He does not answer to that name. 

Mr. Stanbery. He pleads a misnomer. 

Judge Bond, (to the prisoner). What is your name ? 

Prisoner. Mil us. 

Mr. Corbin, (looking at the indictment). It is M-i-I-u ; the s is not 
completed. 

Mr. Johnson. But does not read Milus. 

Judge Bond. He is the party taken on the writ ? 

Mr. Corbin. Certainly. 

Mr. Johnson. It is the wrong name. The parties who had answered 
to their names, and who stood wdth their hands upraised, were arraigned 
before the Court, and the first count read, to which they plead not 
guilty. 

Mr. Corbin. If the Court please, we w'ould say this to the defense, as 
we said in the other case, that if these parties are to be allowed ten 
peremptory challenges each, we shall try them separately. In other 
words, if they propose to sever in their challenges, we propose to try 
them separately. 

Mr. Johnson. He has not read the whole indictment yet. 

Mr. Corbin. What do you say ? 

Mr. Johnson. The whole indictment is not read yet. We will answer 
at the proper time. 

Mr. Corbin. The proper time to sever is by plea. 

The Clerk continued with the remainder of the indictment, and asked 
the prisoners if they were ready for trial. 

Mr. Hart. If it please the Court, we claim the right of challenge in- 
dividually. 

Mr. Corbin. We ask that the case of Robert Hayes Mitchell may be 
taken up, if the Court please. [To the Clerk] : Impannel a jury. 



Part IV. 



THE CASE OF EGBERT HAYES MITCHELL. 



Columbia, December 12, 1871. 
Robert Hayes Mitchell was required to stand up, and notified to chal- 
lenge the jurors to ^Yhom he objected, before they were sworn. 

EmjjanncUlng the Jury. 

January Simpson, colored, was first called as a juror, and sworn on his ■» 
Yoirdire. 

Mr. Stanbery. Plave you formed and expressed an opinion about the 
guilt or innocence of these parties? 

Juror. No, sir ; I cannot tell anything until I've heard the evidence. 

Mr. Stanbery. Have you served on any jury, or been summoned to 
serve in this Court w^ithin the last two years ? 

Juror. No, sir ; this is the first time. 

Mr. Stanbery. No further objection. 

The juror was sworn. 

William Smith, colored, was next called, and sworn upon his voir- 
dire. 

Mr. Stanbery. Where do you reside ? 

Juror. In this place. 

Mr. Stanbery. Have you expressed any opinion about the guilt or in- 
nocence of these parties ? 

Mr. Corbin. That is not the question; it is the guilt or innocence of 
this defendant. 

Mr. Stanbery. You have not, you say ? 

Juror. No, sir. 

jMr. Stanbery. Let the juror be sworn. 

Edward Reed, colored, was the next juror called, and sworn upon his 
voirdire. 

Mr. Stanbery. Have you expressed any opinion as to the guilt of the 
defendants ? 

Judge Bond. This defendant. 

Mr. Johnson. If your Honors plea«e, they are indicted jointly for the 
same offense. 



156 

Mr. Covbin. But they are not all on trial. 

Mr. Johnson. Joint defense certainly. Does the Court say that we 
are not entitled to ask an opinion as to the guilt of any other party than 
the party on trial ? 

Judge Bond. I don't think you have the right, Mr. Johnson. 

Mr. Johnson. Is that the opinion of the Court, your Honor? 

Judge Bond. I hope so, sir. 

Judge Bryan. It seems to me that either, or all of these parties might 
be guilty or innocent; therefore, it is that the guilt of the party on trial 
is the one to be ascertained — and the one upon which he is to answer. 

Mr. Stanbery. Have you expressed an opinion as to the guilt of all 
these defendants ? 

Juror. No, sir. 

IMr. Corbiu. What is that ? 

Mr. Stanbery. Well, he says no. We challenge the juror. 

Addison Bichards, colored, was the next juror called, and sworn upon 
his voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. This place, Columbia. 

Mr. Stanbery. Have you expressed any opinion about the guilt of 
these — all of these defendants". 

Juror. No, sir. 

Mr. Stanbery. You can stand aside. We challenge him perempto- 
rily. 

Henry Daniel, colored, was the next juror called, and sworn upon his 
voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. In Columbia, at the present time. 

Mr. Stanbery. But do not live here ? 

Juror. No, sir ; not altogether. 

Mr. Stanbery. Where do you live ? 

Juror. Lexington. 

Mr. Stanbery. Have you expressed any opinion upon this Case ? 

Juror. I have not, sir. 

Mr. Stanbery. Stand aside ; we challenge. 

David Leahy, white, was the next juror drawn, and sworn upon his 
voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. Laurens. 

Mr. Stanbery. Are you not from Union County? 

Juror. No, sir. 

Mr. Stanbery. We challenge him. 



157 

E. C. Rainey, colored, was the next juror called, and sworn on his 
voirdire. 

Mr. Stanbery. Have you served upon a jury within the last two years ; 
grand or petit jury? 

Juror. Not in Columbia. I have served in Charleston. I served in 
Charleston at the trial of Langley and Williams. Judge Bond pre- 
sided. 

Mr. Stanbery. That is a cause for challenge. We challenge hijn for 
cause. 

Judge Bond. That is a legal disqualification under the Act of Con- 
gress. The juror is rejected. 

Andrew W. Curtis, colored, was the next juror called, and sworn upon 
his voirdire. 

]Mr. Stanbery. Where do you reside? < 

Juroi\ At Columbia, sir. 

Mr. Stanbery, Have you heard of this case ? 

Juror. No, sir. 

I\Ir. Stanbery. Expressed any opinion about the case ? 

Juror. I/have not expressed any opinion, sir; uotanysince I have been 
on this jury. 

Mr. Stanbery, Have you served on any jury within the last two 
years ? 

Juror. I've never served in the Circuit Court. 

iMr. Stanbery. We challenge him.^ 

Ephraim Johnson, colored, was the next juror called. 

Mr. Stanbery. Have you formed any opinion in this case ? 

Juror. No, sir; none at all; no, sir. 

Mr. Stanbery. What part of the State do you live in ? 

Juror. Georgetown, S, C, 

Mr, Stanbery, Have you been on a jury in the United States Court 
Avithin the last two years ? 

Juror. No, sir ; have not attended Court at all in the last two years. 

Mr. Stanbery. The juror may be sworn. 
• Franklin J. Macmickin, white, was the next juror called, and sworn 
upon his voirdire. 

Mr, Stanbery. Have you formed an opinion as to the guilt of these 
parties ? 

Juror. I have not. 

Mr. Stanbery. What part of the State do you live in ? 

Juror. Newberry. 

Mr. Stanbery. Swear him. 

James McGill, colored, was the next juror called, and sworn on his 
voirdire. 



158 

;Mr. Staubery. In what part of the. State do you live ? 

Juror. In Georgetown District, sir. 

Mr. Stanbery. Have you served as a juror, within two years, in this 
Court? 

Juror. Yes, sir ; last January, at Charleston. 

The Clerk. That is the District Court. 

Judge Bond. Have you the Act of Congress, gentlemen ? 

Mr. Corbin. The Act of Congi-ess, if your Honors please, reads as fol- 
lows : That any person shall not be summoned as a juror, in any Circuit 
or District Court, more than once in two years, and it shall be sufficient 
cause of challenge, if he has been summoned and attended said Court as 
a juror, at tiny term of said Court held within two years prior to the 
time of challenge. 

We would suggest to the Court, that this refers to the separate Courts. 
If he had been summoned in this Court within two years, it would be a 
cause of challenge, but serving in the District Court is not. 

Judge Bond. Except in the District Court ? 

Mr. Corbin. Except. 

Judge Bond. He cannot be summoned in the District Court oftener 
than once in two years, nor in the Circuit Court oftener than once iu two 
years ; but he may serve in the Circuit Court even if he has been sum- 
moned in the District Court within two years. That is the construction 
that has been given to the Act. 

Mr. Stanbery. The juror maybe swornj 

W. H. Jackson, white, v»as the next juror called, and sworn upon his 
voirdire, 

Mr. Stanbery. Have you served as a juror in this Court ? 

Juror. No, sir. 

Mr. Stanbery. Have you formed any opinion in this case? 

Juror. I have not. 

Mr. Hart. Stand aside. 

Gabriel Cooper, colored, was the next juror called. He was sworn 
upon the panel Avithout interrogation on his voirdire. 

Joseph Taylor, colored, was the next juror called. 

Mr. Stanbery. Swear the juror. 

Andrew W. Burnett, white, was the next juror sv^oru. 

Mr. Stanbery. Swear the juror. 

Mr. Corbin. Stand aside. 

James C. Hulloway, white, was the next juror called, and sworn upon 
his voirdire. 

Mr. Stanbery. What part of the State do you reside in? 

Juror. Charleston. 

Mr. Stanbery. Have you served upon a jury in this Court before? 



159 

Juror. No, sir. 

Mr. Stauberj'. No further objections. 

Mr. Corbin. Stand aside for the present. 

Mr. Johnson. I do not know what that means. Is that a challenge ? 

Mr. Stanbery. He means to challenge. 

Mr. Johnson. I want to know, may it please your Honors, whether the 
Government can set a juror aside in any other way than by challenging 
him. He must be sworn, unless challenged — sworn when he is called, 
unless challenged by one of either party. The United States have a 
right to challenge two, and the prisoners to challenge ten. Now, does 
my brother mean to say that he is going to exercise the right of chal- 
lenge hereafter, or is this intended to be a challenge? 

Mr. Corbin. We intend, if the Court please, to exercise the right which 
the Government has of qualified challenge, having the juror stand aside 
for the present. If the panel shall be exhausted, and these parties are 
required, then we must challenge for cause. 

Mr. Stanbery. Our statute gives no such right. The gentleman is 
going back to a proceeding under other circumstances than these. 

Mr. Corbin. What statute do you refer to? 

Mr. Stanbery. I am speaking of the statute that gives to the United 
States two peremptory challenges. Not a right to set aside anybody 
We ask the jurors to come back again ; and he must determine now 
■whether he challenge them or not. 

Mr. Corbin. I think that question is too well settled to demand dis- 
cussion, and I will not enter upon that discussion, unless the Court desire 
to hear it. 

Judge Bond. A proceeding in this Court in criminal aifairs is a pro- 
ceeding at common law, and it was always the right at common law, by 
the Government, to tell a juror to stand aside, until the panel is ex- 
hausted. 

Mr, Stanbery. But the common lavv' never gave peremptory chal- 
lenge. 

Judge Bond. I know ; he has that, in addition, by the statute. 

Mr. Stanbery. That supplies the want they had before. 

Mr. Johnsou. If your Honors have finally decided the matter, neither 
my friends nor myself will make any attempt to convince the Court that 
the privilege is not authorized by Act of Congress ; your Honor is right 
in supposing that, under the common law, the Government had a right 
to set aside the juror ; but this gives them no right of challenge. But 
the Act of Congress gives them the right to challenge. Now, in our 
view, the right to challenge is substituted for the pov/er the Govern- 
ment had to set aside jurors. 

We have, as we think, may it please your Honors — unless the Court 



IGO 

lias decided otherwise — vre have a right to have a juror sworn, unless the 
Government exercise its right to challenge. 

How are we to get a jury, if the Government has the right claimed by 
the District Attorney? AVe might call up eight, ten or twenty jurors ; 
they may be competent, and we may be desirous to have some of them 
sworn; but he says : "Stand aside." How are we to get a jury then? 
Has he a right to call them back and select such of them as he chooses 
to call bade, or is it not our right — a right necessary to the enjoyment of 
the privilege which the Act of Congress gives — is it not our right to have 
every man sworn as a juror, to whom the Government does ncrt object, if 
we do not object? I submit to your Honors that, if you have ever enter- 
tained a different impression, it is quite a serious matter — not so much in 
this case as in others — and the Court had better examine the question, if 
there is any doubt about it, so as to settle the question, under the Act of 
Congress, for all time. 

Mr. Corbin. If the Court please, I have nothing to say in reply. I 
intend to observe the rules of this Court, vrhich my distinguished friend 
on the other side does not — that is, discussing the question after the Court 
has decided it. 

Mr. Johnson. But I did that with due courtesy, I hope. The learned 
District Attorney seems to think that whatever he supposes the law to 
be, if the Court gives him even a virtual recognition of it, is the law, 
beyond all doubt. I accept of that. 

Judge Bond. My brother tells me this has always been the practice 
in this S*-ate. It has been decided in several ways in the United States. 
We merely follow the settled fact. Go on, gentlemen. 
^ Wm. Mooney, white, was the next juror sworn on his voirdire. There 

being no objections to him, he was sworn in the case. 

Henry Fordham was the next juror called, and sworn on his voirdire. 

Mr. Hart. Stand aside. 

Mr. Stanbery. Is the District Attorney to set aside the whole jury ? 

Mr. Corbin. You set him aside yourself. 

Judge Bond. You set him aside ; you have not exhausted your chal- 
lenges yet. 
•y Philip Salters, white, was the next juror called, and svrorn on his voir- 

dire. 
' Mr. Stanbery. Where do you reside ? 

Juror. Charleston. 

Mr. Stanbery. Have you served upon a jury in the Circuit Court of 
the United States at any time within two years ? 

Juror. No, sir. 

Mr. Stanbery. Have you formed or expressed any opinion about the 
guilt of this defendant ? 



161 

Juror. No, sir. 

Mr, Stanbery. The juror can be s\yoru. 

William F. Dover, colored, was the next juror called, and sworn on his 
voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. Charleston, sir — Charleston County. 

Mr. Stanbery. Have you formed or expressed any opinion ? 

Juror. I have not, sir. 

Mr. Stanbery. The juror may be sworn. 

William H. Deberry, white, was the next juror called, and sworn On 
his voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. Darlington County, sir. 

Mr. Stanbery. Have you expressed any opinion about this case? 

Juror. No, sir. 

Mr. Stanbery. The juror may be sworn. 

Mr. Corbin. Stand aside. 

Mr. Johnson. I should like to know whether we have a right to say 
stand aside, too. 

Judge Bond. No, sir. It is confined to the Government. 

Mr. Johnson, {sotto voce). Can't say stand aside; it is confined to the 
Government ! 

Adam Crook, colored, was the next juror called, and sworn upon his 
voirdire. 

Mr. Stanbery. If the Court please, I feel, in regard to the course now 
being taken — standing aside jurors, as they call it — by the District Attor- 
ney, according to the old English common law practice, that it never 
prevailed here in criminal cases, and could not prevail, for we have no 
common law to make it apply. This practice is not allowable; and what 
Mr. Jonhson, ray colleague, and myself want, is opportunity to argue this 
question to the Court. It is a very important matter. 

Judge Bond. We will hear you on a motion in arrest of judgment. 

Mr. Stanbery. That will do, (to the juror.) Where do you reside ? 

Juror. Fairfield District, sir. 

Mr. Stanbery. Do you know anything about this case now on trial ? 

Juror. No, sir. 

Mr. Stanbery. Have you served on the jury of a Circuit Court of the 
United States at any time ? 

Juror. No, sir. 

Mr. Stanbery. This is the first time ? 

Juror. Yes, sir. 

Mr. Stanbery. I ask you because I see your name is entered in the list 
here as living in Columbia. 
11 



162 

Juror. No, sir. I live iu Fairfield District, about thirty-one miles 
from here. 

Mr. Hart. Stand aside. 

Joseph Keeue, colored, was the next juror called, and sworu upon his 
voirdire. 

Mr. Stanbery. ' Where do you reside ? 

Juror. Statesburg, Sumter County. 

Mr. Stanbery. Do you know anything about this case ? 

Juror. Nothing at all, sir. 

Mr. Stanbery. Have you served in the Circuit Court within two years? 

Juror. Yes, sir — I served in this Court, iu Charleston, last January. 

Mr. Stanbery. Which Court ? 

Judge Bond. The District Court ; the Circuit Court did not meet 
there then. 

Mr. Stanbery. We have no objection to this juror ; he may be sworn. 

Nathaniel E. Edwards, colored, was the next juror called, and sworn 
on his voirdire. 

Mr. Stanbery. Have you formed or expressed an opinion in this case ? 

Juror. No, sir. 

Mr. Stanbery. You have not ? 

Juror. I have not. 

Mr, Stanbery. Have you been upon a jury of the United States Cir- 
cuit Court within two years before? 

Juror. No, sir ; this is the first time. 

Mr. Stanbery. We challenge him. 

John A. Pugh, colored, was the next juror called, and sworn upon his 
voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. Columbia, sir. 

Mr. Stanbery. Do you know anything in this ease, now pending ? 

Juror. I've no knowledge of it, sir. 

Mr. Stanbery. Formed or expressed no opinion about it ? 

Juror. I could not, because I had no knowledge of it. 

Mr. Stanbery. Have you served upon a jury of the Circuit Court of 
the United States within two years ? 

Juror. This is the first time I've lieen here as a juror. 

Mr. Stanbery. The juror can be sworn. 

Mr. Corbin. Stand aside. 

Mr. Jolinson. j\[r. Clerk, have you the number of those Avho have 
been told to stand aside ? 

The Clerk. Yes, sir ; four, sir. 
Mr. Johnson. Very well. 



163 

Isaac Black, colored, Avas the next juror called, and sworu upon his 
voirdire. 

Mr. Stanbery. Where do you reside ? 

Juror. Columbia, sir. 

Mr. Stanbery. Have you been a juror in the Circuit Court of the 
United States within two years before ? 

Juroi\ I have not, sir. 

]Mr. Stanbery. Let Irim be sworn. 

The jurors here answered to their names : one white and eleven colored. 

The Court appointed Joseph Taylor, colored, foreman. 

The indictment, charging Robert Hayes Mitchell, was read in the hear- 
ing of the prisoner. 

Mr. Corbin. May it please the Court and gentlemen of the jury, the 
case now to be presented to you is one of an unusual importance. It is 
one of a somewhat startling character in this country. The defendant 
who is now called before you is charged with having entered into a con- 
spiracy for the purpose of preventing and restraining divers male citi- 
zens of the United States, of African descent, and qualified to vote, from 
exercising the right of voting. 

We shall first show you that he entered into a general conspiracy, ex- 
isting in the County of York, for the purpose of preventing colored vo- 
ters of that County from exercising the right to vote. 

We shall prove the existence of an organization, perfect in all its de- 
tails, armed and disguised ; that this organization was bound together by 
a terrrible oath, the penalty for breaking of which was declared to be 
the doom of a traitor — death! death!! death!!! We shall show that 
this organization had a constitution and by-laws, regulating, in detail, all 
the duties of its members ; that it prevaded the whole County, or a large 
portion of it ; that it was inaugurated in 18G8 ; that its active opera- 
tions were somewhat suspended during the years '69 and '70, but that in 
'71, particularly, it became very active; that great numbers of colored 
citizens, who were entitled, by law, to vote, in that County, were visited 
by the Klau, and whipped, and many of them murdered. In this case, 
we shall show to you that this organization deliberately planned and ex- 
ecuted the murder of Jim Williams, whose name you will find in this in- 
dictment, in pursuance of the purpose of the organization. We shall 
prove to you, gentlemen, that the defendant Vv^as present, aided and 
assisted in carrying out the purpose of the organization ; and was 
present at the execution of Jim W^illiams. 

The details will all come out in proof The raid — as it was called in that 
County — that killed Jim Williams, consisted of some forty, fifty or sixty 
persons. It met at what is called, in the County of York, the "Briar 
Patch," an old "muster" field, armed, disguised and mounted; that, 



164 

under the command of a leader, J. W. Avery, this orgauization proceeded 
to the house of Jim Williams, broke iu his door, took him out, fastened a 
rope about his neck, took him to the woods near by, and hung him 
till he was dead. That they left a card upon him, which was found on 
the morning following the execution, containing the words " Jim Wil- 
liams on his big muster." That, on the same night, they visited divers 
other houses of colored people, threatened them, took them out, i"< bbed 
them of their arms, and informed them that, if they should vote again 
they would be killed. Gentlemen, this comprises, in brief, all that we de- 
sire to say to you in the opening. We proceed in the first count of this 
indictment, under the sixth Section of an Act of May 1, 1870. 

The second count in this indictment, and it contains but two, charges 
that this defendant, and divers other evil disposed persons, at York 
County, &c., did conspire together, with intent to oppress, threaten and 
intimidate Jim Williams, male citizen, &c., because he exercised the 
riglit and privilege of voting on the third Wednesday of October, 1870. 

We shall endeavor to show that this attack upon Jim Williams w\as, 
not only for the purpose of preventing his voting in 1872, but because he 
had exercised the right and privilege of voting in 1870. 

We shall ask you to particularly listen to the witnesses. IMauy of 
them are ignorant, and many of them never appeared in Court before, 
and are unaccustomed to the trials of the witness stand. 

The Trial. 

Mr. Stanbery requested the Court to direct that all the witnesses, ex- 
, cept the one testifying, leave the Court. 

The Court directed all the witnesses to retire. 

Mr. Johnson. It is not unusual, may it please your Honors, for the 
■witnesses for the defense to be^compelled to leave. As far as I am con- 
cerned, I have no objection to it, however. 

Mr. Stanbery. I see no rule for sending out our witnesses. 

The Court. All the witnesses must retire. 

TESTIMONY OF LIEUTENANT GODFREY. ^ 

Lieutenant Godfrey, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corbin. 

Q. Are you an officer of the United States Army ? 

A. I am. 

Q. What is your rank in the army ? 

A. I am a First Lieutenant of the 7th Cavalry. 



165 

Q. Where is your post of duty? 

A. Yorkville, York County. 

Q. '[A paper was here presentscl the witness.] Will you look at 4hat 
paper, and say whether you re(?oguize it ? 

A. I do recognize it. 

Q. State where and how you obtained it ? 

A. I was ordered, on the night of the 20th of October, Friday, by 
Colonel Merrill, Commandant of the Post at Yorkville, to proceed to the 
house of Samuel G. Brown, to obtain there the constitution and by-laws 
of the Ku Klux Klan. The order which Colonel Merrill gave me was 
signed by Mr, Brown, to procure them from his daughter. 

Q, Who gave you that order ? 

A. Colonel Merrill ; and the order was signed by Mr. Brown. 

Q. (by Mr. Hart). Where is the paper that you say was signed by 
Mr. Brown? 

A. I gave it to his daughter. 

]Mr. Hart. We object to the testimony. 

Mr. Corbin. It was an order from Mr. Brown to his daughter to 
deliver the paper. 

Q. What was done v/ith that paper? 

A. I gave the order to his daughter, and she assisted me in the search 
for it. I found them in the desk. 

Q. (by Mr. Johnson). Who was that order from? 

A. The order for the constitution and by-laws was from Mr. Samuel G. 
Brown. 

Mr. Hart. We object to the testimony. The attempt is to connect 
Samuel G. Brown with the conspiracy. 

Q. Did you obtain that paper at the time you mention, and the paper 
that is enclosed ? 

A. I obtained these papers the next morning, at the house of Mr. 
Brown. 

Q. How and where did you find them? 

A. I found them in the private desk, as designated by Mr. Brown iu 
his order*. 

Q. State just where you found it ? 

A. I found it in the private desk of Mr. Brown, at his residence. 

Q. Who assisted you in finding it ? 

A. The daughter. 

Q. Did she find it, or did you? 

A. I found it myself 

Q,. Did she show you the place ? 

A. She did, and assisted me in unlocking the desk to get it. 

Q. Did you put any mark upon it ? 



166 

A. I did. 

Q. What was it ? _ 

A. I endorsed upon the back how I found them, and Avhere I found 
them, and signed my name to it. 

Q. Eead it. 

A. [Witness reading]. The within papers were found by me in the 
private desk of Samuel G. Brown, of York County, when I sought for 
them by order of Colonel Merrill, commanding post at Yorkville, upon 
a written paper signed by Samuel G. Brown and addressed to his daugh- 
ter Jennie. 

Q. Is your pame signed to that paper? 

A. Yes, sir. 

Q. What did you do "with that paper after you found it ? 

A. I carried it back to Yorkville and gave it to Colonel Merrill. 

Q. Look at it now, and see if you find it substantially in the same 
condition as it was at that time? 

A. It seems to be in the same condition ; I see no alterations. 

Q. What is that little i^aper you have in your hands ? 

A. This is a list of names found with the papers. 

Q. Was it found with the constitution and by-laws ? 

A. Yes, sir ; it was wrapped up in the same lot of papers. 

Cross-examination vraived. 

TESTIMONY OP ALBERTUS HOPE. 

Albertus Hope, a witness for the prosecution, being duly sworn, testi- 
fied as follows : 

Q,. Where do you reside ? 

A. In York County. 

Q. How long have you resided there ? 

A. I have resided where I am now living for eleven or twelve years. 

Q. [A paper was here banded the witness]. Look at that instrument 
and tell us whether you have ever seen it before? 

A. I cannot be positive as to that matter, sir, whether this is the paper 
I have seen before or not. 

Q,. Did you give a paper containing the constitution and by-laws of 
the Ku Klux Klan to Samuel G. Brown? 

A. I gave him a written document. 

Q,. Is that the document ? 

A. I cannot say positively that it is ; the paper has been used ; I was 
not familiar with the handwriting of the document; if this be the paper, 
it has been used since it passed out of my hands. 

Q. What do you mean by that; that it is dirty? 



167 

A. Yes, sir ; it has been some time since it passed out of my hands, 
and I cannot be positively certain that it is the paper. 

Q,. How many sheets, or half sheets of paper, were there in that con- 
stitution and by-laws? 

A. I think the amount of paper is the same. 

Q. Was it on a sheet and a half? 

A. Yes, sir. 

Q. What is the substance of it ? 

Question objected to, and withdrawn. 

Q. Have you read the paper ? 

A. A portion of it I did, sir. I cannot say that I ever read it all. 

Q. Have you read it nOw ? 

A. No, sir ; I read a portion of it. 

Q. Read it and see Avhether it is the same paper ? 

A. I must say that I don't recognize the handwriting. 

Mr. Stanbery. The question is addressed to the Court as to the admis- 
sibility of the paper. [To Mr. Corbin]. Do you claim that this testi- 
mony goes to the jviry with respect to this paper, or whether it is an ex- 
amination before the Court ? 

Mr. Corbin, I am endeavoring to prove this paper by this witness in 
the presence of the Court and jury. 

Mr. Stanbery. We object to this paper till the Court has decided as to 
its admissibility. 

^ Judge Bond. The counsel for the Government has a right to prove 
the conspiracy, and he can begin at which end he pleases. 

Mr. Stanbery. The question is, whether that paper is identified, and 
the proof of the paper must be addressed to the Court. 

Judge Bond. You do not connect this party with these papers ; if it is 
not the paper upon which the charge is based, the prosecution is at lib- 
erty to examine the witness to show the authenticity of this paper. 

Mr. Stanbery. But the testimony is always to the Court. 

The Court. The counsel has not offered the paper yet. 

Mr. Stanbery. The question of its authenticity is before the Court, not 
the jury. 

Mr. Johnson. Some of his answers may have weight with the jury. 
The objection to the paper is on that ground, if it be read to the jury be- 
fore it is identified. The evidence as to the identity of the paper is always 
submitted to the Court. 

The Court. He is simply endeavoring to identify the paper. 

Q. Have you read that paper now ? 

A. Yes, sir. 

Q. What do you say to the substance of that paper? 



168 

A. So far as my knowledge serves me, a portion of it is the same. The 
contents of a poition of it are the same. 

Q. AVhat do you say of the pujier as a whole ? 

A. Well, I dou't know as I can say anything further than, if my mem- 
ory serves me, that is a portion of it. 
Q,. How much of it ? 

A. So far as my memory serves me, in regard to the constitution, part 
of it it ajpears to me to be about the same. 
Q. Do you believe this is the paper or not? 
Question objected to, and withdrawn. 

Q. Where did you get that paper that you gave to Mr. Brown ? 
A. I think, as near as my memory serves me,* that it was given me by 
Major Avery. 

Q. When did you get that paj)er of him ? 
A. Some time in 1868. 
Q. How came he to give you that paper ? 

A. From my statement to him that I would like to see the ground- 
work. At that time, it was discussed in the newsp?C|)ers all through the 
country, that there was such a thing in some portions of the Country, 
though not in ours. I expressed a desire to see the groundwork, and the 
document v^•as handed to me. 
Q,. The groundwork of what ? 
A. The Ku Klux organization. 

Q. What did you understand, from Major Avery, the Ku Klux organi- 
zation to be ? 

A. I could not positively find that out. 
Q. What is the general understanding ? 
Question objected to. 

Mr. Corbin. This organization is one of secrecy, and its operations are 
in the dark, and their members endeavor to keep all they did, even their 
relation to the order, secret, and it is this gentleman's understanding as 
to who the commanding officer was, that we wish to get at. 
Q. Have you ever been a member of that Klan ? 
A. I have not been a sworn member. 

Q. Have you been inside the order, and recognized as a member ? 
A. I never have, as I consider it. 
Q. Did you ever attend meetings of this order ? 
A. Yes, sir ; I did attend one ; a statement of which I have given. 
Q. When was that meeting held ? 

A. I have not the dates of anything, but, as well as my memory serves 
me, it was along about the 1st of last March. 

Q. What other members of the Klan were there ? 

A. If you call it a Klan, there were other members there. 



169 ' 

Q. All the persons who attended that meeting — were they not mem- 
bers of the Klan ? 

Question objected to, and wiilidrawn. 

Q. Was it a meeting of the Ku Klux Klan ? 

A. I did not consider it so. 

Q. Were you, or not, elected chief that night ? 

A. I was elected to govern that party; and allow me to state- 
Mr. Corbin. That is all I desire. 

Witness. The condition of the up-country demanded something at that 
time. They had been burning and making threats in the country, and 
it certainly did demand that something should be done. Word was left 
at my house to go to that meeting. I came very near not going ; but 
when I did go, I asked the object of the meeting, and it was said that, in- 
asmuch as there had been so much burning and threats made round our 
County, that it was necessary we should come to some understanding ; 
that we should know w^here to get assistance, if we needed it. 

Q. Well, you organized a Klan ? 

A. Yes, sir; if you consider that an organization. 

Q. And they elected you chief of that crowd, did they not? 

A. They elected me leading officer of that party. 

Testimony objected to. 

Mr. Corbin. We think this testimony is pertinent as to whether all who 
were present acknowledged, before proceeding to business, that they were 
sworn members of the Ku Klux Klan, or other Klaus. 

Mr. Johnson. We object to that. I understand him to ask whether 
the persons present at that meeting acknowledged that they belonged to 
that Klan — as to whether they said so. The proper way is to call up 
the men themselves, if they can get them ; but they propose to rely upon 
the unsworn declarations of those who were present. We are entitled to 
have direct evidence of the fact that each one was a member of the Klan 
in point of fact — not by his own declarations, but by something that he 
did — if they can show any act that he did. 

Mr. Corbin. This organization, as we shall be able to show, is one that 
operates in the dark, and that the members were known to each other by 
signs and.grips, and by various means, and that, when they recognized 
each other, they talked and discussed the proceedings of the order. 

Mr. Johnson. We do not object to that. 

Mr. Corbin. We wish to show^ that, on this occasion, they did not pro- 
ceed to business till each man had been examined, to know whether he 
was initiated within the order. That this question was put to the mem- 
bers of the order, and that they all gave assent that they were sworn 
members of the Ku Klux Klan ; and that they then proceeded to the or- 
ganization, electing Mr. Hope as their chief. 



170 

Q. Was each person present at that meeting interrogated as to 
whether every member present beluwged to the Ku Klux Klan ? 

A. I do not know positively that they were. It was not done by 
me. 

Q. Was it done by somebody ? 

Question objected to as leading. 

A, A portion of it was ; but it was not done by me. A portion of them 
had been sworn in. 

Q. Did not that apply to all of them ? 

A. I do not think it did. 

Q. They did elect you commander, that night, did they not? 

A. Yes, sir. 

Q. Were there not some officers elected? 

A. Some were appointed. 

Q. What were they called ? 

A. Some termed them Wardens, to let them know if they were needed. 

Q. W^hat is the general names by which they were known ? 

A. I do not know ; some of them called them Night Hawks. 

Q,. How many Night Hawks did you elect? 

A. I do not remember, exactly. 

Q. Were there any other officers there ? 

A. I think there were ; a man that kept the roll or record, in case 
there was any need of them. 

Cross-examination by Mr. Stanhery. 

Q. You speak about going yourself to that meeting ? 

A. Y^es, sir. 

Q. At what season of the year was it ? 
I A. I think about the last of March, 1871. 

Q. You say the reason why you went to the meeting was because of 
certain burnings and threats which had been made ? 

A. Yes, sir. 

Q. Had you any burnings thex'e ? 

A. Y''es, sir ; we had a number of them. 

Mr. Oorbin. We object to that. 

Mr. Stanbery. It was you who proved it; we didn't ask him if there 
had been any. 

Q. State what burnings there were? 

A. Dr. Masters and Mr. Castle, and Rev. James Castle and Jackson 
Brown, who had their gin-houses, and mills, and barns, and stables 
burned, and then the smoke-house of Mr. Brown, and others in the 
neighborhood. 



171 

Q. Had these burnings been frequent ? 

A. About five or six. 

Q. What threats had been made? 

A. Threats had been made. 

Q. (by Mr. Corbin). Name the person who made the threats ? 

A. It was a freedman by tlie name of Mick Moore. 

Q. (by Mr. Corbin). Did you hear him make it? 

A. No, sir. 

Mr. Corbin. We object to the testimony. » 

Mr. Stanbery. They are attempting to make out a conspiracy, and to 
show intention, purpose and motives which instigated the parties to make 
the agreement. I have heard of no agreement that is before the jury? 
except the meeting this gentleman attended in March last. That is the 
only agreement which has yet been given in evidence. We want to show 
what was the purpose and objects of that meeting. What measures 
the meeting agreed to take to avert these injuries, or burnings, 
or threats. Supposing there had been no threats, but that the parties 
had been informed that threats had been made to burn their houses, or 
other injuries. Acting upon that information, there are abundant 
reasons to prove the intent, animus and motives of the meeting. 

The Court. The witness says he heard those threats, but does not knov>^ 
who made them. 

Witness. I heard of threats being made, but do not know who made 
them. 

Mr. Johnson. The specific change against the prisoner is, that he be- 
longed to a conspiracy to violate the rights secured by the Act of 1870, 
that is, the right to vote or to do anything else that was secured by the 
Act of 1870. The counsel for the prosecution has told the jury that they 
proposed to prove that this was an organization for the purpose of frus- 
trating or defeating some right belonging to our colored citizens, and 
especially the right of suffrage, and he has told the jury that the con- 
spiracy or association was to that end. 

Now, is it not competent for us to prove by the party, if he is a com- 
petent witness, that that was not the object of the conspiracy at all, so 
far as is knov/n? That, on the contrary, his individual motives, in be- 
coming a party to that association, was to protect his own property and 
that of his neighbors, and the lives of those Avho might be connected 
with them, from what he supposed to have been going on in the neigh- 
borhood by some persons — whether white or black is immaterial — or 
whether there were threats or no threats; if they went together, under the 
honest impression that such threats had been made, and to guard them- 
selves against the consequences of such threats. 
' It disproves the very ground on which the prosecution are placing 



172 

tlieir case, that tliey got together for a different purpose than preventing 
the colored man from exercising the right of suffrage. It is wholly im- 
material whether there were fires or threats then or not. If they believed 
that these conflagrations would be continued, and honestly believed that 
other wrongs would be committed upon them and their neighbors, such 
as were indicated by the threats, then they not only did not commit the 
offense charged in this indictment, but they did what they had a right to 
do. They acted in self defense, upon the hypothesis which we suppose to 
be established by the testimony of this witness ; that is to say, they acted 
upon the natural desire of shielding themselves against outrages, and not 
for the purpose of perpetrating outrages upon others. 

Q. (by Mr. Johnson). What was your motive in going to the meeting 
in March, 1871 ? 

A. For self-defense and the protection of those that were helpless in 
my neighborhood ; to guard against anything that was going on, or that 
might be gotten up. There were other things which led my mind to be- 
lieve there would be difficulties. 

Q. (by Mr. Johnson). You went to the meeting to guard yourselves 
against further conflagrations ? 

A. I had no other object in view. 

Q. What did you understand to be the natui'e of these threats ? 

A. It was just this, that they were thi'eats, 

Q. Who did you understand that these threats came from? 

Question objected to. 

Q. (by Mr. Johnson). You understood them as coming from some- 
body ? 

A. Yes, sir ; I did. 

Q. Did you understand these burnings to be accidental or incendiary? 

A. They could not possibly be accidental. 

Mr. Corbin. We object. 

Judge Bond. The witness has a right to answer that. 

Mr. Corbin. They insist that we shall not put in any hearsay testi- 
mony, and they are asking nothing else. 

Q. Then your purpose in going to that meeting was to protect yourself 
and your family against those fires and the performance of those threats? 
Had you to guard your own house for several nights ? 

A. Yes, sir. I walked my yard several nights. We could not sleep. 
There were several fires around us. I do not know how^ they came. 

Q. Then you were impressed with the danger to yourself and family? 

A. Yes, sir ; from their nearness to me, I certainly was impressed. 

Re-direct Examination. 
Q. You replied, in answer tr> a question, that vcn \vr.n<^ to t.Ka<- •^'.'^^ti^Jrr 



173 , 

to pi'oteet yourself and the helpless ones about you. Did that include 
the colored people, as well as your own family ? 

A. Yes, sir ; I intended to protect all about me. 

Q,. Who v\ere you to protect the colored people against? 

A. From any party that might molest them. 

Q. Had yon reference to the Ku Klux organization in that reply ? 

A. I had uo reference to any particular organization. 

Q. Do you not know that the Ku Klux were raiding generally? Was 
it not your motive to protect your colored laborers from them ? 

A. There were raiding parties going about the country. 

Q. And you intended to protect the colored people on your lands ? 

A. I did, sir. 

Q. (by Mr. Stanbcry). From whom did you understand these threats 
to come ? 

A. I understood them to come from a portion of the colored race. 

Q. Who did you understand were committing these raids around the 
country? 

A. My understanding was that the raids were made generally by white 
parties. 

Q. What were these raiding parties called ? 

A. They were generally called Ku Klux. 

Q. What was the character of these raids? what were they raiding 
on, and what were they doing? 

Mr. Stanbery. We object. 

The Court. We think he has a right to answer that. 

Mr. Johnson. There is no conspiracy proved. 

The Court. The witness is entitled to answer, to show the conduct of 
the raiding parties throughout that country. 

Mr. Corbin. I do not think Ave will press that further. 

TESTIMONY OF KIKKLAND L. GUXN. 

Kirkland L. Gunn, for the prosecution, being duly sworn, testified as 
follows : 

Direct Exam'inaflon by Mr. Corbin. 

Q,. Are you a resident of York County ? 
A. I was, sir. 

Q. When did you reside in York County ? how long ? 
A. I resided there from the time I was born until last May, sir. 
Q. Were you, Mr. Gunn, during your residence in Yorkville, a mem- 
ber of the Ku Klux Klan? 
A. I was, sir. 
Q,. When did you join the organization? 



174 

A. In Januavy, 1871, sir, 

Q. Where? 

A. At Wesley Smith's, in York County, or near his house, sir. 

Q. Who initiated you ? 

A. W^esley Smith, John Osborne, and others. 

Q. Did you take the obligation of the order — the oath ? 

A. I did, sir. 

Q,. I will read an obligation to you, and ask you if — 

Mr. Johnson (interrupting). State to us what the obligation was. 

Mr. Corbin. I propose to read it. 

Mr. Johu«oa. No, sir ; let him state what the obligation was. 

The Court. He is e-ititled to read the obligation, and ask the witness 
if •he ever heard that obligation before. 

Mr. Johnson. Without first asking him what the obligation was? 
That is telling the witness what the answer is. Our view is that, in rela- 
tion to an obligation or an oath, the party must state from recollection, 
if he can recollect, what was the character of the obligation. 

Mr. Corbin. We have no objection to asking the general question. 
First, what was the obligation and pui'pose of the Klan ? 

A. The obligation, sir, that I took, was that I should not divulge any 
j^sart of the secrets of the Klan that I had joined ; and it was for the 
j)urpose of putting down Radical rule and negro sufFrtige. 

Q. What was the general object and purpose of the order ? 

A. That was the purpose of the organization, sir. 

Q. Have you ever heard the constitution and by-laws of the order 
read ? 

A. I heard it read, sir, when I was initiated. 

Q. How were you initiated? Describe to the jury the process of ini- 
tiation. 

A. I was knelt down, sir, and the oath was read to mc, and then the 
constitution and by-laws were read to me, sir. 

Q. Now I want you to look at that constitution and bj'-lav/s, and say 
whether that was the constitution and by-laws of the order. 

[Counsel passed to witness a paper purporting to be the obligation, 
constitution and by-laws of the Ku Klux Klan, which witness examined.] 

A. Sir, that is, in substance, the same that I heard read. This ob- 
ligation is the same, sir, and I think the constitution is the same, in 
substance. 

Mr. Corbin. We propose to read that paper, may it please your 
Honors. 

Mr. Johnson. Let us see it first, before you read it. 

The paper was handed to counsel for defense. 



175 

Mi\ Stanbeiy, (to the witness). This paper that they have handed you, 
did you ever see this particular paper before ? 

A. Yes, sir. 

Mr. Stanbery. When ? 

A. I saw it in Colonel Merrill's office, at Yorkville. 

Mr. Stanbery. When did you first see it there? 

A. It was al>.)ut one week ago, sir, I think, now, as ^\'ell as I remem- 
ber. 

Mr. Stanbery. That is the first time you ever saw it ? 

A. Yes, sir; that is the first time I ever saw that paper. 

Mr. Stanbery. You saw the same paper, however ? 

A. Yes, sir ; I saw the same document, and on another paper — the same 
instrument. 

Mr. Stanbery. But the document you speak of is not this identical 
paper ? ^ 

A. No ; not that paper. 

Mr. Corbin. We propose to read this paper, if the Court please. 

The Court. Read the paper. 

Mr. Chamberlain, of counsel for the prosecution, read the document re- 
ferred to, as follows : 

OhUgaiio7i. 

I, (name) before the immaculate Judge of Heaven and Earth, and 
upon the Holy Evangelists of Almighty God, do, of ray own free will and 
accord, subscribe to the following, sacredly binding obligation : 

1. We are on the side of justice, humanity and constitutional liberty, 
as bequeathed to us in its purity by our foreflxthers. 

2. We oppose and reject the principles of the Radical party. 

3. We pledge mutual aid to each other in sickness, distress and pecu- 
niary embarrassment. 

4. Female friends, widows and their households shall ever be special 
objects of our regard and protection. 

Any member divulging, or causing to be divulged, jvny of the forego- 
ing obliation, shall meet the fearful penalty and traitor's doom, which is 
Death ! Death ! Death ! 

Constitution. 

Article 1. This organization shall be known as the — Order, Ko. — , 
cf the Ku KIux Klan, of the State of South Carolina. 

Article 2. The officers shall consist of a Cyclops and Scribe, both of 
whom shall be elected by a majority vote of the order, and to hold their 
office during good behavior. 



176 

Article 3. It shall be the duty of the C. to preside in the order, enforce 
a due observance of the constitution and by-laws, and an exact compli- 
ance to the rules and usages of the order; to see that all the members 
perform their respective duties; appoint all committees before the order; 
inspect the arms and dress of each member on special occasions ; to call 
meetings when necessary ; draw upon members for all sums needed to 
carry on the order. 

Sec. 2. The S. shall keep a record of the joroceedings of the order, 
write communications, notify other Klans when their assistance is needed, 
give notice when any member has to suffer the penalty for violating his 
oath, see that all books, papers or other- property, belonging to his office, 
are placed beyond the reach of any but members of the order. He shall 
perform such other duties as may be required of him by the C. 

Article 4 — Section 1. No person shall be initiated into this order under 
eighteen years of age. < 

Sec. 2. No person of color shall be admitteJ into this order. 

Sec. 3. No person shall be admitted into this order who does not sus- 
tain a good moral character, or who is in any way incapacitated to dis- 
charge the duties of a Ku Klux. 

Sec. 4. The name of a person offered for membership must be proposed 
by the Committee appointed by the Chief, verbally, stating age, resi- 
dence and occupation; state if he was a soldier in the late war; his 
rank ; whether he was in the Federal or Confederate service, and his com- 
mand. 

Article 5 — Section 1. Any member who shall offend against these arti- 
cles, or the by-laws, shall be subject to be fined, and reprimanded by the 
C. as two-thirds of the members present at any regular meeting may 
determine. 

Sec, 2. Every member shall be entitled to a fair trial for any offense 
involving reprimand or criminal punishment. 

Article 6 — Section 1. Any member who shall betray or divulge any of 
the matters of the order, shall suffer death. 

Article 7 — Section 1. The following shall be the rules of order. Any 
matter herein not provided for shall be managed in strict accordance 
with the Ku Klux rules: 

Sec. 2. When the Chief takes his position on the right, the Scribe, 
with the members, forming a half circle around them, and, at the sound 
of the. signal instrument, there shall be profound silence. 

Sec. 3. Before proceeding to business, the S. shall call the roll and note 
the absentees. 

Sec. 4. Business shall be taken up in the following order : 

1. Reading the minutes. 

2. Excuse of members at preceding meeting. 



177 

3. Report of Committee of candidates for membership. 

4. Collection of dues. 

5. Are any of the order sick or suffering ? 
G. Report of Committees. 

7. New business. 

By-Laivs. 
Article 1 — Section 1. This order shall meet at . 



Sec. 2. Five (5) members shall constitute a quorum, jirovided the C. 
or S. be present. 

Sec. 3. The C. shall have power to appoint such mem])ers of the order 
to attend to the sick, the needy, and those distressed, and those suffer- 
ing from Radical misru'e, as the case may require. 

Sec. 4. No person shall be appointed on a Committee unless the 
person is present at the time of appointment. Members of Committees 
neglecting to report shall be fined thirty cents. 

Article 2 — Section 1. Every member, on being admitted, shall sign 
the constitution and by-laws, and pay the initiation fee. 

Sec. 2. A bri)ther of the KJan, wishing to become a member of this 
order, shall present his application, with the proper papers of trans- 
fer from the order of which he was a member formerly ; shall be ad- 
mitted to the order only by a unanimous vote of the members pre- 
sent. 

Article 3 — Section 1. The initiation fee shall be . 

Article 4 — Section 1. Every member who shall refuse or neglect to 
pay his fines or dues, shall be dealt with as the Chief thinks proper. 

Sec. 3. Sickness, or absence from the County, or being engaged in 
any important business, shall be valid excuses for any neglect of 
duty. 

Article 5 — Section 1. Each member shall provide himself with a pistol, 
Ku Klux gown, and signal instrument. 

Sec. 2. When charges have been preferred against a member in a pro- 
per manner, or any matters of grievance between brother Klux are 
brought before the order, they shall be referred to a Special Committee of 
three or more members, who sliall examine the parties and determine the 
matters in question, reporting their decision to the order. If the parties 
interested desire, two-thirds of the members present voting in favor of the 
report, it shall be carried. 

Article 6— Section 1. It is the duty of every member who has evidence 
that another has violated Article 2, to prefer the charge and specify the 
offense to the order. 

Sec. 2. The charge for violating Article 2 shall be referred to a 

12 



178 

Committee of five or more members, who shall, as soon as practicable, 
summon the parties and investigate the matter. 

Sec. 3. If the Committee agree that the charges are sustained, that 
the member on trial has intentionally violated his oath, or Article 2, they 
shall report the fact to the order. 

Sec. 4. If the Committee agree that the charges are not sustained, 
that tke member is not guilty of violating his oath, or Article 2, they 
shall report to that effect to the order, and the charges shall be dis- 
missed. 

Sec. 5. "When the Committee report that the charges are sustained, 
and the unanimous vote of the members is given in favor thereof, the of- 
fending person sliall be sentenced to death by the Chief. 

Sec. 6. The prisoner, through the Cyclops of the order of which he is a 
member, can make application for pardon to the Great Grand Cyclops of 
jSTashville, Tennessee, in which case execution of the sentence can be 
Srtayed until pardoning power is heard from. 

Q,. Mr. Gunn, you have stated the general purposes of the order ; now 
will you please state to the jury how those purposes were to be carried 
into effect ? 

A. Well, sir ; that is known, I think ; but the way that I was told that 
they were going to carry this into effect was by killing off the white 
Radicals, and by whipping and intimidating the negroes, so as to keep 
them from voting for any men who held Radical offices. 

Mr. Johnson. We reserve objections to that ; it is of no consequence. 

Q. Pursuant to that mode of intimidating and killing yoters, was 
there anything of the kind done, within your knowledge ? 

Mr. Stanbery. "We object to that question — object to his saying v.diat 
he was told. 

Mr. Corbin. I am not asking for v.'hat he was told. 

Mr. Stanbery. The gentlemen have produced a constitution of the 
order and given it it in evidence, and that has nothing in it about inter- 
fering with the suflTrage. There is no such agreement in that paper. 
Now^, I understand the witness to be asked wdiether he was told by some 
one that any other body was to intimidate voters. This is not the way 
to make out the case. 

The Court. We think the question may be asked. [To the witness.] 
State what was done in pursuance of the object of the order. What 
was done pursuant to the purpose of the order as you have stated it, ac- 
cording to your knowledge? 

A. Their principle was to whip such men as they called Radicals, and 
men who were ruining the negro population, &c., and they murdered 
some. 



179 

Q. Well, Mr. Gunn, when did they do this ; night time or day time ? 

A. In the night, sir*. 

Q. The organization was armed according to the by laws ? 

A. Yes, sir ; they were armed. 

Q. What were their arms ? 

A. Most generally, pistols, sometimes shot guns, muskets, &c. 

Q. What is the Ku Klux gown referred to in the by-laws ? 

A. It is a large gown made — all that I ever saw was made of some 
solid colored goods ; I don't knQw what the color was ; it looked dark iu 
the night ; I never saw a gown in daylight. 

Q. What were those gowns worn for ? 

A. To disguise the i^erson, sir. 

Q. Were the purposes of the order to be carried out with the dis- 
guise on ? 

A. Yes, sir. 

Q. When the Klan was assembled to prosecute any of its purposes, 
such as whipping and killing, were they disguised or not ? 

A. Always, sir. 

Q,. And always moving, when ? 

A. In the night. 

Q. Well, then, you yourself have been on raids, or been ordered out? 

A. I was ordered to two, sir. 

Q. Who gives the order for a raid in the Klan ? 

A. The Chief. 

Q. W^ho carried the orders in the Klan ? 

A. The officers known as Night Hawks. 

Q. What raids were you ordered upon ? 

A. The first, sir, was a raid kn6wn as the Bill Kell raid. 

Q. Who brought you the order to go upon that raid ? 

A. John Wallace. 

Q. Who is John Wallace; what is his relation to the order? 

A. He was what we call a Night Hawk, sir. 

Q. In whose Klan ? 

A. John Mitchell's. 

Q. Were you a member of that Klan ? 

A. Yes, sir; I v/as told I was a member of it when I was initiated. 

Q. Well, then, you went on that raid? 

A. We went to Avhere the meeting place was, and met several men 
there, and among the rest was Hugh Kell, and, when he was found to be 
there, the Chief declined going on the raid. 

Q. On account of his presence ? 

A. Yes, sir. 

Mr. Stanbery. What has all that to with it ? 



180 

Sir. Corbin. General mode in which the business of the order was car- 
ried on. 

Q. What was the purpose of raiding on Bill Kell ? 

A. It was my understanding to kill him, sir. 

Q. What for? 

A. Because he was a President of a Union League. 

Q. You say that the raid did not proceed any farther than the meet- 
ing place? 

A. No, sir. * 

Q. And because his brother was there ? 

A. Yes, sir. 

Q,. What other raid were you ordered upon ? 

A. One known as the raid upon Jennie Good. 

Q. What was the object of the raid ; who brought you the order ? 

A. I don't remember who brought the order now. 

Q. W^as it an order from the Chief ? 

A. Yes, sir ; it was an order from Byers. 

Q. Pie was the Chief of the Klau that was going to make the raid 
with another Klan? 

A. Yes, sir. 

Q. What Byers ? 

A. Charles Byers. 

Q. Did he have a Klan ? 

A. Yes, sir. 

Q. How about those Klaus ? You say you belonged to one Klan — 
John Mitchell's Klan — and now you speak of Byers' Klau. Tell us 
about the two Klans ? 

A. They were near each other, and members of the order could be 
called upon from one Klan by the other. 

Q. Which Klan was organized first ? 

A. John Mitchell's. 

Q. How came the other Klan to be organized ? 

A. Because they wanted a Klan in their neighborhood, sir. 

Q. Now, you say you were ordered by Charley Byers on that raid ? 

A. Yes, sir. 

Q. Did you go ? 

A. I went to Avhere they met. 

Q. AVliere was that ? 

A. It was on Roland Thompson's plantation. 

Q. Whom did you meet there ? 

A. I met Byers, Wesley Smith, Joe Smith and others I don't remem- 
ber now who. 

Q. Members of the order? 



181 

A. Yes, sir. 

Q. How did you recognize a member of the order ? 

A. By signs and pass words, sir. 

Q. Did you recognize tlicm iu tliOtt way tliat night ? 

A. Yes, sir. 

Q. Did you go on that raid ? 

A. No, sir. 
• Q. Why not ? , 

A. Because I had no saddle to ride, sir. 

Q. Did the others go ? 

A. Yes, sir. 

Q. What was the object of the raid — the reason of it? 

A. The reason that I was told, was that they wanted to drive this 
negro woman from Dr. John Good's premises ; that she was a nuisance to 
his wife, and they thought it a duty of the order to drive her a^vay from 
there. 

Q. Now tell us what some of the signs and pass words of the order 
were ? 

A. This was the first sign [witness passed his hand forward over his 
right ear.] It was to be answered in the same way by the left hand. 
This is the next sign [the witness inserted the fore finger of his right hand 
into his pantaloons pocket, the thumb remaining on the outside.] 

Q. What was the reply to it ? 

A. It was to be returned that way. [Witness gave the same sign with 
his left hand.] 

Q. Go on. 

A. Then, Vv'hen you were sitting about, you could give the sign by 
turning your [right] heel into the hollow of your foot, to be returned with 
the left the same v.'ay. 

Q. Proceed. 

A. The pass word was, if you met any one in the night, you should 
spell the word I-s-a-y, and not pronounce it ; if it Vv^as a member of the 
order Vvdiora you met, he would spell N-o-t-h-i-n-g, and not pronounce it. 

Q. Any other signs and pass words? 

A. None that I know. 

Q. What about that signal whistle spoken of iu the by-laws ? 

A. I never saw one in daylight; I cannot descrij^e it. 

Q. What sort of a noise did it make ? 

A. A shrill, gurgling noise. 

Q. Who carried the whistle ? 

A. Each member was required to have one, sir. 

Q. What was the object of it ? 

A. To eive sio-nals with. 



182 

Q. What did it mean ? 

A. If the Chief sounded his whistle, and they were marching, they were 
to stop, and if they were standing the sound of his whistle meant to 
march on. 

Q. When the Klan was ordered upon a raid, how were they arranged 
as to names, &c. ? 

A. The names were not given ; they were not called by the Chief or 
any one, and were not allowed to call each others' natnes on the raid; 
they were called by numbers. 

Q. How were they numbered? 

A. They had different modes of numbering, sir ; sometimes they com- 
menced — the first number was one hundred ; sometimes it commenced at 
five hundred, and at other times they commenced at one — the chief would 
bs number one, and go up from that. 

Q. How was an order given if a detail was required ? 

A. It was given by the Chief. 

Q. He told you v.hat he wanted done ? 

A. Yes, sir. 

Q,. How did he detail men ? By number or name ? 

A. By number. 

Q. How would he speak to a certain individual in the Klan, and order 
liim to do or not do certain things? 

A. If it was number five, he told number five to do what he wanted 
done. 

Q,. Do you know Squire Samuel G. Brown, of Yorkville ? 

A. I do, sir. He don't live in Yorkville ; he lives in York County. 

Q. Is he or not a member of the order ? 

A. I heard him say that he was a member of the order, sir. 

Q. What further did he say about his Klan ? 

Mr. Johnson. We object. 

Mr. Coi'bin. We found this constitution and by-laws in his possession, 
and want to know what his relations to the order were. 

Q,. Did he occupy any official position m the order ? 

A. He told me that he was Chief — or told it to Wesley Smith in my 
presence, sir. 

Mr. Johnson. That v/on't do. 

Q. He told you he was Chief? 

Mr. Johnson. I object to this, if the Court please. 

The Court. The Court will rule it out. 

Q. Well, he told you he was Chief — that was all ? 

]\fr. Johnson and Mr. Stanbery remonstrated with Mr. Corbin. 

Mr. Corbin. I understand the Court to rule out his admission that he 
was a member of tilie Klan. 



183 

The Court. The witness stated that he knew hhn to Lea member of the 
Klau. 

Mr. Corbiri. If the Court please, our purpose in asking the- question is 
this : We are now, by this witness, showing the general purpose and or- 
ganization of the order. 

The Court. You have a perfect right to do so. 

Mr. Corbin. And, for that purpose, we ask this witness if Squire Sam 
Brown vras known to him as a member of the order. He says he was. 
Now, we ask him what official position Sam Brown had in the order. He 
says he told him he was a Chief. 
Mr. Johnson. That won't do. 

Mr. Corbin. I think it is for us to prove the official relation to the 
order, because, how are we ever to get at a thing of that kind ? Mr. 
Brown is not supposed to talk here and admit his official relation to the 
order ; but what he has told to his brother Ku Klux in the aflairs of the 
order ; what his official relations to the order were supposed to be. Of 
course, the best evidence in the world is Mr. Brown's admission that he 
was a member of the order. It seems to me, in this general conspiracy, 
we are to get at these things in this way ; otherwise, ^sto never can get at 
them, because it was a secret organization. 

Mr. Johnson. We don't want to get at them at all. 
Mr. Corbin. And Ave desire to go further to prove these official persons 
in the order who were looked upon as leaders ; what they have asserted 
to be the purposes of the order — their admission. 

An Attorney. As counsel for Mr. Brown, may it please your Honors, I 
would say this : 

Mr. Corbin. I don't think counsel for Brown is entitled to say any- 
thing about it. 

Tlie Court. That won't do. 

Mr. Stanbery. I admit, if the Court please, that, in certain instances, 
the declarations of co-conspirators are evidence ; that he was a co-con- 
spirator ; that that party did enter into an agreement Avith him. How is 
that to be shown ? Can any one declare to another, I am a co-conspirator 
with A, B and C, and now I've something to tell you about that con- 
spiracy, and proceeds to develop the conspiracy, and declares that he was 
a co-conspirator ? Why is it necessary to argue that a party cannot make 
himself a conspirator with another, in that way, by his own declarations? 
not by his own declarations that he was concerned with another which 
makes declarations evidence against another ; must it not appear that the 
other has agreed to be a conspirator v/ith him ? 

The Court. He may show that they were likewise members of the con- 
spiracy ; he can go on to show the general character of the conspiracy. 
He can shoAV, on the testimony of parties who admitted that they were 



184 

memLers of it, and their declarations as to the purpose of it, You are 
not aifected by it until he shows subsequently that you were a member of 
it likewise. 

Mr. Johnson. We. have no doubt about the law, may it please your 
Honors. The only question is, v.'hether the case, as it now stands, ftills 
"within the principle. 

The Court. You cannot prove a conspiracy except by an examina- 
tion. 

Mr. Johnson. But what I mean to say is this, that they propose now to 
give in evidence a man's declarations for the purpose of affecting this 
man on his trial, and your Honors i^aj they may, providing he Vi'as one of 
the Khin. 

The Court. Not at all. It is not necessary that he should be a mem- 
ber of the same Klan, 

Mr. Johnson. I don't mean that. I mean the general organization. 
Now, the only evidence that Brown was a member is, that Brown told 
him he was a member. So far as finding the constitution in his house is 
concerned, that presents a different subject. This man does not know- 
that he was a member of the Klan ; he never saw him doing anything 
toward the execution of the objects of the conspiracy. Our idea is, that 
they must first prove that he was a member of the association before they 
can give any evidence against Brown, and they must prove that by legal 
evidence. 

Mr. Chamberlain. If your Honors please, all this evidence, so far, 
has been directed simply to the point of proving the general Ku Klux 
conspiracy, and we have not attempted to connect these defendants 
with this conspiracy. The authorities agree that we can proceed in 
precisely this manner. We have proceeded to prove the general con- 
spiracy, but, before you can fasten the guilt of that conspiracy upon 
any individual defendant, you must connect him with that conspirac}^ 
Now, we are trying to prove that York County was enveloped by this 
conspiracy ; it was]a general conspiracy ; and here we have, first, presented 
the evidence of this Squire Brown, that he, himself, was a member of 
that conspiracy to Avhieh all our evidence relates. Has it not been 
l^roved, then, that Squire Brown, himself, admitted of this general con- 
spiracy, and, if he was a member of this general conspiracy, then are his 
acts and declarations evidence, not that these defendants were members 
of the conspiracy, but to prove the general character of the conspiracy ? 

Q. (by the Court). These people had a method of recognizing, [to the 
witness.] Had you any other way of knowing that Squire Brown was a 
member of the order ? 

A. Yes, sir; he gave me the sign which I have just showed you, and 
I answered it. 



185 

Q. Well, now, what did he say about the purpose of his Klan — the 
purpose of the order ? 

A He and Wesley Smith were in conversation, and I stepped up, 
and he gave me the sign, which I returned. He said, "Is this man all 
right?" and Wesley Smith said, "Yes." "Well," he then continued, as 
if they had been in conversation some time — he says himself — " 1 can 
kill and whij) more damned niggers with my Klan than all the rest of 
York County." 

Q. Will you now tell — perhaps you know — of the extent of this or- 
ganization in York, and how the Klans were situated — located throug^i- 
out the County ? 

A. I cannot give you any correct idea about the situation of Klans 
and the number of Klans, but, to the best of my knowledge, I think 
the majority of the white people of York County belong to the order. 

Q. How many Klans did you have connections with about V)'here you 
live? 

A. Only three, sir, that I had any connection with. 

Q. Whose Klans were those ? 

A. John Mitchell's, Charley Byers' and Bob Burris'. 

Q. Can you tell us about how many members each of those Klans 
had? 

A. Burris only had twenty ; Byers had, I think, seventeen ; I don't 
know the number of Mitchell's. 

Q. Now, please state again, what, from your own knowledge of the 
operations of the order and its leading men, was the purpose of the 
order ? 

A. Just what I have said to you before, was the purpose. 

Q. Your own knowledge ? 

A. Well, my ov»'n knowledge vras what I was told, and what I heard 
of being done, sir. 

Q. Well, for instance, take your own Chief, John Mitchell ; what 
did he tell you, or, rather, what Vi'ere his statements to you as to the 
purpose of the order when you were initiated ? 

A. He did not make any statements to me himself 

Q. Who did make statements to you ? 

A. Wesley Smith, and others that were there at the initiation. 

Q. In the first place, you heard the constitution and by-laws read. 

A. Yes, sir. 

Q. Then you heard the men talk at the meeting ? 

A. Yes, sir. 

Q,. And Wesley Smith you heard discuss the matter? 

A- Yes, sir. 

Q. What did he say? 



186 

A. Just what I have repeated ; it was to put down Radical rule and 
negro suffrage. 

Q. Did you ever hear Charley Byers ? 

A. Yes, sir ; that is what I heard him say it was for. 

Q. And theother Klau. Have you mentioned the Chief of the other 
Klan ? 

A. It was Sam. Stewart. 

Q. Did you hear J^Iitchell, who ordered the raid on Bill Kcll, say 
what the purpose of that raid was? 

A. I did ; he said it was for the purpose of killing him. 

Q.- For what ? 

A. For being a President of a Union League. 

Q. Xow, Ml". Guuu, can you tell us anything about the extent of 
this general conspiracy — this organization — not only in York County, 
but beyond the limits of York County, or beyond the limits of this 
State ? 

A. I met the same order in Georgia, sir. I don't know anything about 
it beyond York County, in this State. 

Q. You met it in Georgia ; what Counties in Georgia ? 

A. I found it in Whitfield County and Catoosa. 

Mr. Johnson. What has that to do with the question ? 

Mr. Corbin. I am proving the extent of this conspiracy. 

Mr. Johnson. What has that do do with the offense charged to be 
committed in South Carolina? We are not to be bound by what they 
did in Georgia. 

Mr. Corbin. We are proving the general conspiracy. It is the same 
conspiracy all over. 

Mr. Johnson. How can you know that ? 

Mr. Corbin. I propose to ask the witness. 

Mr. Johnson. He does not know anything about it. 

Mr. Corbin. My distinguished friend has interrupted him before he 
can answer. 

Mr. Johnson. I mean to say that a conspiracy in Georgia, or ^iny 
other State, is no evidence at all of the objects of a conspiracy here. 

The Court. He has stated that he knew, himself; recognized it, he 
said, by signs. > 

Mr. Johnson. By signs? Very well. 

Q. Did you attend meetings over in Georgia ? 

A. I did, sir. 

Q. AVhat Counties ? 

A. The first meetii^g was in Catoosa County. 

Q. What were they doing over in Georgia to carry out this conspi- 
racy ? 



187 

A. The meeting that I was at last was to raise money ibr the purpose 
of sending to South Carolina, they told me. 

Q. For ^Yhat purpose? 

A. For paying lawyers' fees, and paying witnesses to go to Court. 

Mr. Johnson, (soto voce). I hope they raised it. 

Mr. Stanbery, (so'o voce). That is encouraging. 

j\Ir. Corbin, {soto voce). I should think that would be comforting in- 
formation to you. 

Q. The whole matter discussed in the meeting ? 

A. Yes, sir. 

Q. Taking care of the Ku Klux brethreu in this State, were they ? 

A. Yfs, sir. 

Q. Was money raised ? 

A. There was, sir. 

Q. Raise it for sending on here ? 

A. They told me that was the purpose. 

Q. Money paid in ? 

A. Yes, sir. 

Mr. Corbin began another question, but was interrupted in it by Mr. 
Johnson, who stated that a juror desired to retire, and he would recom- 
mend an adjournment. 

The Court directed the Marshal to adjourn the Court until 7 o'clock 
in the evening, and to take the jury into custody. 

The Court then adjourned. 



. EVENING SESSION. 

Q. Do you know J. AY. Avery, of Yorkville ? 

A. I do, sir. 

Q. Do you know whether he is a member of the Ku Klux order ? 

A. I do not. 

Q. What is the understanding in the order with reference to it ? 

A. I understood he Avas a member of it. 

Mr. Stanbery.' We object to" that testimony. 

The Court. That will not do. 

Q. Do you know this defendant ? 

A. I do, sir. * 

Q. How long have you known him ? 

A. I think about two years since I met him first. 

Q. Do you know whether or not he is connected with the order? 

A. I do not. 



188 

Q. How far did you live from him in Yorkville? 
A. About tweh-e miles. 

Cross- Examination by Mr. Stanhery. 

Q. What moved you to join this order? 

A. I was solicited by Mr. Smith and others. I was told if I did not 
join it, it would probably go hard with me if anything should turn up ; 
that, if they got into power, they would work for us; that was the lan- 
guage used to me. 

■Q,. What part of the County did you then live in ? 

A. At that time I was in the north-eastern part of the County. 

Q. Where did this Mr. Smith live? 

A. He lived in that portion of the County. 

Q,. Where was the house to which you went to join ? 

A. It was at his house. 

Q,. Did he solicit you to join? 

A. Yes, sir. -^ 

Q. W^as that the only motive that induced you to go? 

A. It Vv'as for my personal safety, that induced me to join them. 

Q. You say he threatened yaii ? 

A. Yes, sir. 

Q. ^V^hat was the nature of his threats, and when were they ? 

A. It was at the time he first mentioned the matter to me, that he told 
me it would not be good for me if I refused to join the order. 

Q. Where was that? ' 

A. At his house. 

Q. Who was present ? 

A. There was no one present at that time. 

Q. Were you on a visit then ? 

A. I was at his house photographing ; that Avas my business. 

Q. Did he speak of any fires or dangers from any persons in that 
County ? 

A. Not at that time; he didn't. 

Q. Had you heard anything about fires ? 

A. Of course, sir ; I had heard of fires in the County. 

Q. Where abouts ? 

A. I do not remember the names of any persons now who had suf- 
fered. 

Q. Was there a report of incendiarism in the County? 

Question objected to. The Court permitted it, only to show- the motive 
of the party in joining the organization, in-espective of the fact. 

Mr. Stanbery. That is what I am after. 



189 

A. They wished me to join to protect myself. 

Q. Did Mr. Smith speak to you about fires and dangers from any class 
of people before you joined ? 

A. No, &ir. He did not have anything to say about dangers or fires, 
or incendiarism, or anything of that sort. 

Q. But tliey told yuu it would be better for you to join ? 

A. Yes, sir. 

Q. Did you know what kind of a society it was you were going to 
join? 

A. I did not till I was initiated. 

Q. How long was it after Mr. Smith told you it would be better fur 
you to join, that you did join? 

A. It was about two hours from the time he first mentioned it to me. 

Q. Who was present when you were initiated ? 

A. John Osborn and some others, but I do not remember who they 
were. 

Q. W;i3 Mr. Smith himself there ? 

A. Yes, sir ; be was the man who initiated me. 

Q. You say there was a constitution ? 

A. Yes, sir. 

Q. Did you see it ? 

A. I did. 

Q,. Did you read it yourself? 

A. No, sir. 

Q. Was it in a book? 

A. No, sir ; it was written on foolscap paper. 

Q. Was it on one sheet or more ? 

A. I think it was on two sheets and a half. 

Q. Were they fastened together? 

A. Yes, sir ; they were. 

Q,. How were they fastened ? 

A. At the side, like a copy-book. 

Q. That w'as read too, was it ? 

A. Yes, sir. 

Q. Who read it? 

A. Wesley Smith. 

Q. After you had heard it read, what then ? 

A. I was sworn in before I heard it read ; after it was rend to me I 
was considered a member. 

Q. Were you sworn in before you heard it read ? 

A. Yes, sir. 

Q. What was the nature of the oath ? 

A. The oath you heard read a while ago. 



190 

Q. I want you to state it ? 

A. I cauuot repeat the oatli, sir. 

Q. AYhat was the substance of it that you swore to ? 

A. I swore to be true to that order, and to raaintain their constitu- 
tion. 

Q. Did you swear to maintain it before you heard it read ? 

A. Yes, sir; I did. 

Q. After you read it, did you back out ? 

A. No, sir. 

Q. Did you sign it ? 

A. No, sir. 

Q. You said before that the Klan of wliich you became a member had 
for their chief, Mr. Mitchell? 

A. Y'es, sir. 

Q. Was Mr. Mitchell there ? 

A. No, sir. 

Q. Have you ever met Mr. Mitchell at any of the meetings ? 

A. At one meeting. 

Q. What was that ? 

A. It was at the meeting of the raid, knov/n as the Bill Kell raid. 
Q. Plow long after you joined? 
A. I think three weeks. 
Q. Where did you meet? 

A. It was in York County, near Bilk's Creek Bridge, called Barclay's 
Hill. 

Q. Was it day or night ? 
A. Night. 

Q. Were you in disguise ? 
A. No, sir. 

Q. Was Mitchell in disguise? 

A. He was when he first came out tlicre to Barclay's Hill. 
Q. Did he come to that point in disguise ? 
A. Yes, sir. 

Q. Did he take off his disguise there ? 
A. No, sir ; not until he was returning back home. 
Q. How long did he remain thei'e ? 
A. Half an hour. 

Q. Was he in disguise all the time ? 

A. I do not know ; I did not see him all the time lie was there. 
Q. Did you separate ? 

A. He was mixing through the party as well as I was. 
Q. Y^ou say he was in disguise, and that you saw him after the disguise 
was off? 



191 

A. Yes, sir. 

Q. Where did he put it ? 

A. He put it in a sack. 

Q. Did YOU see him ? 

A. I did not. 

Q. How do you knovv' ? 

A. I saw hirn put some of the others in there. 

Q. Had he his disguise on or off? 

A. He had it off when he was there. 

Q. AVho else did 3'ou see therej 

A. Wiley Harris, Charles Foster and Edward Leech. Wiley was the 
man who gave Mitchell his disguise to put away. 

Q. Is that the only occasion on which you saw Mitchell ? 

A. That was the only one. 

Q. After the first meeting, when do you remember seeing him ? 

A. Not until the time I told you of. I did not meet Mitchell's Klau 
any more after that. 

Q. Whose Klan did you meet next? 

A. Charles Byers's. 

Q,. When was that ? 

A. About a week after. 

Q. Where was that ? 

A. It was on Mr. Thompson's plantation, ia the western part of York 
County. 

Q. Was it night or day ? 

A. Night. 

Q. You still continued to belong to the Klan until that meeting ? 

A. Yes, sir. 

Q. Was it a part of the constitution, that you should not reveal it to 
anybody ? 
' A. Yes, sir, 

Q. When did you first make the discovery to any one, not of the Klan, 
that you were one of the Klan ? 

A. That was last June. 

Q. Can you fix about the time in June? 

A. I do not know what day it was. 

Q. Where was it? 

A. At Tunnel Hill, Georgia. 

Q. Yv^'ere you ia Georgia in your photographing business ? 

A. Yes, sir. 

Q. AYho did you first discover it to ? 

xV. To my brother-in-lavr, Mr. Macauly. 



192 

Q. Was that the pLace vchere you were in the meeting of another 
Klan ? 

A. No, sir. It was before I went into that meeting in Georgia. 

Q,. Then did you ^o to that meeting, in Georgia, of that other Klan, 
after you had disclosed the secret to your brother-in-law ? 

A. Yes, sir. 

Q. And you went into that other Klan as if you were still a mem- 
ber ? 

A. Yes, sir. 

Q. And you gave the pass woi'd and signal, and claimed that you were 
a member ? 

A. Y'cs, sir. 

Q. Did they put any new oath upon you ? 

A. Xo, sir. 

Q. When was that ? 

A. That was in this last November. 

Q,. Had you stated the fact that you were a member prior to the time 
you stated it to your broiher-in-iaw ? 

A. Never before that to any one. I met the Klan soon again after 
that, in June. I met the members of the Klan and recognized them after 
I had made the discovery to my brother-in-law, and I met them again in 
November. 

Q,. I understood you to refer to the meeting to raise funds, that was in 
November? The first meeting, then, was in June? 

A. Y"es, sir. 

Q. At whose house was that ? 

A. It was in an old field. 

Q. How did you know there v.'as to be a meeting there ? 

A. I was told so by some members of the Klan. 

Q. And you did atteild the meeting ? 

A. I did, sir. 

Q. Did you go upon any raids ? 

A. No, sir ; there were no raids made while I was there. 

Q. Did you remain in that part of the country till November? 

A. Y^es, sir. 

Q. And in November you attended another meeting ? 

A. Y'es, sir, 

Q. Where was that held? 

A. Near the same place. 

Q. And you had told no one but your brother-in-law up to that time? 

A. I had told others after the first of June. 

Q. Where did you remahi from June to November ? 

A. At Tunnel Hill, Georgia. 



193 

t 

Q. Did you tell otliers before this first meeting with the Klau iu 
June? 

A. It was after the first meeting that I made the disclosures to 
others. 

Q. Who were they ? 

Question objected to. 

The Court. The counsel for the defense has the right to ask that. 

Mr. Corbiu. Then you will ask him when and where. 

Mr. Stanbery. I trust I know how to examine my own witnesses. 

Mr. Gorbiu. You are asking for matters in general, and not for parti- 
culars. 

Q. When was it you made the discovery to other persons ? 

A. I think in September. 

Q. Not before September? 

A. I think not. 

Q. Where were you when you made that disclosure ? 

A. Cartersville, Georgia. 

Q. Who to ? 

A. The Attorney General of the United States. 

Q. Do you mean Mr. Akerman ? 

A. I do, sir. 

Q. How did you happen to go to Cartersville? 

A. That was my business, to tell him. 

Q. Did you tell him you were a member of the body ? 

A. I did, sir. 

Q. Were you employed by him ? 

A. I was not. 

Q. What took place upon your letting him know you were a member 
of the body ? 

A. He took a statement from me. 

Q. That was all ? 

A. That was all that took place betAveen me and the Attorney Gen- 
eral. 

Q. After that you attended no future meetings ? 

A. I did, sir. 

Q. Still making believe that you were a Ku Klux? 

A. I did not tell them that I had made any disclo-.ures. 

Q. Did you receive any employment, or any compensation, for any 
services that were rendered at that time ? 

A. Not a cent at that time. 

Q. Now, when were you first employed iu the character of a detective 
and who employed you ? 

A. I never was employed as a detective. 
13 



194 

Q. How were you employed, and who employed you ? 

A. I nevei- was employed by any one, sir. 

Q. You say you didn't get any compensation at that time. At what 
time was it stipulated that you were to have such compensation 'I 

A. No such a — ; I never was promised anything. 

Q. You were never promised anything? 

A. Not a thing. 

Q. Did you see no officer about this business, after you saw Mr. Aker- 
man ? 

A. No, sir. 

Q. Military or civil ? 

A. Not until I saw Colonel Merrill, at Yorkville. 

Q. Where did you come from when you saw him ? 

A. I came from Washington city. 

Q. What took you to Washington city ? 

A. I went v/ith my friends to see ,the city. 

Q. O, you went to see the city? 

A. I did. 

Q. You found it a fine city? That was your only business? 

A. That was all my business, sir. 

Q,. Had you ever been there before? 

A. Never, sir. 

Q. Where did you start from, for Washington ? 

A. Dalton, Georgia. 

Q. When you got to Washington, what did you do ? 

Mr. Corbiu. About what ? 

A. Y/hat did I do, sir ? 

Q. You say you went to see the city. Did you do anything but look 
at the city? 

A. That was all I did. * 

Q. Did you see Mr. Akerman ? 

A. I did, sir. 

Q. O, you did go to see him ; but that was not a part of your business 
that took you tliere ? 

A. It was not. 

Q. Was anybody with you? 

A. Yes, sir. 

Q. Who? * 

A. Colonel Baker and some other friends. 

Q. What did they go to the city for? 

A. Colonel Baker went to prosecute Southern claims. 

Q. Who were the others? 

A. Some men who had claims against the Government, sir. 



195 

Q. You came on their account, but you had no business? 

A, I had none at all, sir. 

Q. But you went to see Mr. Akerman 't 

A. I did. 

Q. In his office? 

A. I did, sir. 

Q. When you got there, what business did you have with him ? 

A. None at all with him, sir. 

Q. Just a friendly call upon him ? 

A. None at all. 

Q. You had nothing to say to him ? 

A. We spoke about matters, of course we did ; but not about Ku 
Klux matters. 

Q. How long did you stay in Washington ? 

A. A week, sir. 

Q. Did you visit Mr. Akerman a second time ? 

A. No, sir. 
. Just once ; and all that week you did nothing but look at the 
city? 

A. That was all the business I had, sir. 

Q. Did you return back to Georgia ? 

A. I came to Yorkville, sir. 

Q. What was your business at Yorkville ? 

j^.. I came to see my friends, sir. My father lives in York District, 
and I came home to see my friends.. 

Q. How far do they live from Yorkville ? 

A. Ten miles, sir. 

Q. What time was that ? 

A. I think it was about a v/eek and a half ago. 

Q'. That was right from Washington ? 

A. Yes, sir. 

Q. Then you were in Washington within two weeks of this time ? 

A. I was, sir. 

Q. Was that as late as the beginning of this month? 

A. I can give you the date I left Washington. [Witness referred 
to a memorandum, and continued] : I left there on the 23d of No- 
vember. 

Q. Have yoti a memorandum of the time you left there ? 

A. No, sir, I have not. 

Q. You came immediately to your friends ? 

A. I did, sir. 

Q. AVhen did you first go to Yorkville ? 



196 

A. Ou Monday morning, after I came home from Washington on Sat- 
urday evening. 

Q. Tell us your purpose ? 

A. I had no purpose at all, sir. 

Q. None at all ? 

A. None at all, sir. 

Q. Had you ever been there before ? 

A. I think I have, sir. 

Q. And had no business whatever ? 

A. I had none at all, sir. 

Q. What did you do when you got there ? 

A. I ilidn't do anything, sir. 

Q. Whom did you see ? 

A. Well, among the rest, I saw Colonel Merrill ; I saw several 
men. 

Q,. Did you go to see Colonel Merrill, or did he go to see you ? 

A. I went to see Colonel Merrill first. 

Q. Did anybody go with you ? 

A. Mr. Wallace went with me, when I first went to see Colonel Mer- 
rill. 

Q. Where did you find Mr. Wallace ? 

A. I met him a few miles below York, on the Pinckney road. 

Q. When you were coming to Yoi'kville? 

A. Yes, sir. 

Q. Was it agreed at that time that you and he should go to see Colo- 
nel Merrill ? 

A. It was, sir. 

Q. For what reason ? 

A. Because I had told him of the disclosures I had made. 

Q. You told Avhom ? 

A. Colonel Wallace? 

Q. Whereabouts? 

A. When I first met him in the road. 

Q. Was that the same day you went to see Merrill ? 

A. It was, sir. 

Q. Did he turn and go with you to Merrill's? 

A. We went into liis house, and went back that evening. 

Q. To see Colonel IMerrill ? 

A. Yes, sir. 

Q. What took place when you got to Colonel Merrill's house? 

A. I don't remember now Avhat did take place. s 

il. You don't remember what took place ? Why, that is the most re- 



197 

cent thing that you have been about ; that was only a week and a half 
ago. 

A. There was nothing special took place. 

Q. Nothing special. Did you make a formal call, for civility, or did 
you have business ? 

A. I had no business with him. 

Q. Who opened the conversation ? 

A. Colonel Merrill. 

Q,. In Avhat way ? 

A. Well, that I can't tell you now. I do not remember what he said 
to me now. 

Q. You cannot recollect what you said to him about it ? 

A. About what, sir. 

Q. About what he said to you, and what you said to him ? 

A. I believe we were talking about a cool night Avhen we first went in. 

Q. You recollect that ? ' 

A. I recollect that much of it. 

Q. Well, talk about this matter of business ? 

A. There was no business transacted, sir. 

Q. No talk about it ? 

A. I believe that Colonel Merrill and some of his officers were talk- 
ing about business. 

Q. Do you mean that you did not join iu their conversation ? 

A. I did not, sir. 

Q. Then you had nothing to say fo Colonel Merrill about business, and 
he nothing to say to you ? 

A. Not that night, sir. 

Q. You cannot tell why it was that Yv^allace wanted you to go to Mer- 
rill's ? 

A. Colonel Merrill invited me to come back next morning, sir. 

il. Did you go back next morning? 

A. I did, sir. 

Q,. Was that the business meeting? 

A. If you call it business, I suppose it was, sir. 

Q. Tell us th» business with Colonel Merrill ? 

A. Colonel Merrill wanted me to come before the United States Court 
as a witness ; that was the business ; he told me he wanted me to come 
down on Saturday after that, which I did. 

Q. Did you tell Colonel Merrill anything that you knew ? 

A. I did, sir. 

Q. What did you tell him ? 

A. I don't remember now all that I did tell him ; he made statements 
in Avriting ; you can find them, sir. , 



198 

Q. Did you tell him that you had seen Mr. Akerman ? 

A. I did. 

Q. Did you tell hiin that you had gone to Washington ? 

A. I did, sir. 

Q. Did you tell him that you were employed by Mr. Akerman or any- 
body else ? 

A. No, sir ; I did not tell him I was employed by any one, because I 
was not. 

Q. Up to that time, you say you were not employed by any person, in 
any way whatever ? 

A. T was not, sir, in the employ of any one. 

Q. Did you receive any moneys or compensation from any one ? 

A. No promises made me, sir. 

Q. Have you received any compensation ? 

The witness here hesitated a moment. 

Mr. Stanbery. It can't take long to answer that question. 

A. I have, sir. 

Q. When did you receive it ? 

A. When I was in Washington, sir. 

Q. From whom ? 

A. From the Attorney General's clerk. 

Q,. How much ? 

A. Two hundred dollars. 

Q. What-for? 

A. For to defray expenses in going to Cartcrsville and other places, to 
see him. 

Q. To see whom ? 

A. Mr. Akerman. 

Q. Two hundred dollars, because you had gone to Cartersvilie ? How 
far was it from where you were in Georgia to the place where the Attor- 
ney General was ? 

A. Sixty miles. 

Q. By railway? 

A. Yes, sir. 

Q-. Would it take $200 for that ? 

A. Not quite that much, I think. 

Q. What other expense was this $200 to defray ? 

A. I don't know anything else, sir. 

Q. Did you tell that clerk that S200 was a great deal more than your 
fare was ? 

A. I did not. 

Q. Did he tell you, when he handed you that 15200, that it was be- 



199 

cause you had been put to that much expense in going to see Mr. Aker- 
man ? 

A. No, sir ; he didn't tell ipe anything about that at all. 

Q. No explanations made ? 

A. He counted me $200, and I signed a receipt. 

Q. Do you recollect the character of the receipt you signed ? 

A. I didn't read the receipt, nor I didn't hear it read. 

Q. Was that after you had seen Mr. Akernian, or before ? 

A. Afterwards. 

Q. By whose order ? 

A. I suppose by the Attorney General's order. 

Q. Did he tell you who gave the order ? 

A. No, sir. 

Q. Was it in the outer office that you got the money ? 

A. It was, sir. 

Q, Was it when you went out from the Attorney General's room? 

A. It was in the middle room, between his office and the waiting room. 
There is where Mr. Akerman and I met ; and Mr. Akerman went to his 
office, and told me to remain, and his clerk came and gave the money, 
and told me that Mr. Akerman could not see me any more that day, and 
I left then, sir. 

Q. Did the clerk tell you that that was for going to see Mr. Akerman 
at that place ? 

A. He did not tell me for what purpose it vras foi*. 

Q. And you didn't know for any other purpose ? 

A. That was all. 

Q. And you took the money for compensation for that ? 

A. I did; and would have taken that much more if he had given it. 

Q. You would ? 

A. I would, sir. 

Q. Now, will you state whether you have received any other compen- 
sation? 

A. I have not. 

Q,. Have you had the promise of any other ? 

A. No promise made me, sir. 

Q. And do you again say that your purpose in going to Washington was 
not to be employed or get money ? 

A. No, sir ; it was not my intention. 

Q. Only to see the city ? 

A. Only to see the city ; that was all. 

Q. How were your expenses on the railroad paid coming back ? 

A. I paid them myself, sir. 

Q. When you had the conversation with Mr. Merrill, vv-ho opened it ? 



200 

A. He asked me, what I knew about this Ku Klux matter, I believe, 
sir. I commenced and made some statements to him, to the best of my 
^recollection, of what I knew, and what I had, heard. 

Q. Were you asked, in any way. to make these disclosures upon any 
promise of not being prosecuted yourself? 

A. No, sir ; there vrere no such promises made me. 

Q. Have you had any personal difficuly with Mr. jMitchell ? 

A. Never had any personal difficulty with him at all. 

Mr. Corbin. Which Mr. Mitchell do you refer to ? 

Mr. Stanbery. John W. Mitchell. 

Q. Do you recollect any difficulty in the church vdiere you had your 
gallery ? 

A. He told me he wanted me to .take my apparatus out of that ; but 
it did not amount to a difficulty or any hard feelings on my part. I told 
him I would do it as soon as I could, which I did do. 

Q. That is the only difficulty you recollect? 

A. That is all. 

TESTIMONY OF CHARLES AV. FOSTEE. 

Charles W. Foster, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corbin. 

Q. Where do you reside ? 

A. I reside in York County, sir. 

Q. How long have you lived there ? 

A. I have lived there since the surrender. I was bred and born in 
that County. I went to a new country, and came back again after the 
surrender. 

Q. When did you join the Ku Klux organization? 

A. I think it was about the 15th of December. Somewhere between 
the 15th and 20th. 

Q. Last December ? 

A. Yes. sir. 

Q. What Klan or organization did you join ? 

A. I joined in Aleck Smith's Klan fh-st, and was transferred to John 
Mitchell's. 

Q. That John W. Mitchell? 

A. John W. Mitchell. 

Q. When were you transferred to his Klan ? 

A. I don't know the date. 

Q. Were you sworn into the Klan ? did you take an oath ? 



201 

A. Not in Mitchell's Klan, I didn't. 

Q. But when you were initiated ? 

A. Yes. sir. 

Q. Who administered that oath to you? 

A. Herod Neal and Jim Arrowood. 

Q. Do you remember the oath you took? 

A. I suppose I could. 

Q. Tell us, as near as you can, the character of that oath ? 

A. Well, sir, the first was to protect women and children, I believe — 
put down radicalism — put down Union Leagues, &c. 

Q. What was the penalty, if anything, to the oath ? 

A. The penalty was, if a man divulged any secret of the society, he 
was to suffer death ! death! ! death ! ! ! 

Q. Would you recognize the oath if you should hear it again ? 

A. I suppose I would, sir. 

Q. Listen to this. [Counsel read the oath as read to Gunu.] What 
do you say to that obligation ? 

A. That is about the same that we had. 

Q. jSTow, Mr. Foster, state what the general purpose of the order was? 

A. The general purpose of the order ? 

Q. Yes, as you understood it, practically carried into effect? 

Mr. Stanbery. I object to any such loose questioning as that. Here is 
the document which gives the scope and purpose of the organization. 
He may have understood it very differently from what others understood 
it. This, as far as we can understand, is the only agreement they en- 
tered into sustained by that oath. As to it, we don't see anything to 
trouble anybody, except the man tliat divulges. '' First, we are on the 
side of justice, humanity and constitutional liberty, as bequeathed to us, 
in its purity, by our forefathers. Second, we oppose and reject the prin- 
ciples of. the Radical party '' — 

The Court. That has been read once, Mr. Stanbery. This party can 
give the interpretation that they put upon that paper. 

Mr. Stanbery. Here is the agreement that I was about to read to your 
Honors further, to show that there is no criminalty in it, so far as I can 
see. Now, when a party enters into such an agreement, either to make 
him criminal, because another man understands it to be something crimi- 
nal — 

The Court. He only asked what he understood was the meaning and 
interpretation of that. There is a clause which says they shall put down 
Radicalism ; what is the meaning of that? 

Mr. Stanbery. Let it speak for itself. What has the interpretation of 
this man to do with it? 



202 

The Court. The interpretation that the Klan put upon it in their con- 
duct. 

Mr. Stanbery. When you come to a matter of conduct, it is another 
thing ; but, now, the interpretation that this man put upon it won't 
answer. Here is the agreement. 

The Court; Ask the witness how the purposes were to be carried out. 

Q. How were the purposes of the order to be carried out ? ' 

A. Well, sir, generally, whipping those men who belonged to the 
League — members of the League. 

Q,. The Union League? 

A. Of the Union League — both white and black. 

Q. Now, what do you understand — 

Mr. Stanbery. I object to that. 

Mr. Corbin. We insist on that, if the Court please. 

Mr. Stanbery. Very w'ell ; I object to the interpretation that he puts 
upon this agreement. 

Mr. Corbin. I am not asking him about that agreement ; I am asking 
him what he understood to be the purposes of the Ku Klux organization 
to which he belonged. 

Mr. Stanbery. You have given the interpretation in writing, and we 
would like to see you proceed regularly. 

Mr. Corbin. I would like to see you proceed regularly for a little 
while. 

Mr. Stanbery. I am not accustomed to such interruptions, if the Court 
please. My objection to this is, that they have produced the written 
agreement by which these men were bound together, sustained and sup- 
ported by an oath to sustain and preserve this agreement. I see nothing 
criminal in it ; the agreement must speak for itself; the Court must construe 
it, not the witness. It is a written paper, to be construed b}^ your Hon- 
ors. It is a paper that, apparently, is innocent — that contains no crimi- 
nal agreement. Is he to be made a criminal because somebody else puts 
a criminal interpetration upon it ? The question is, whether the paper 
itself is susceptible of a criminal interpretation ? I have belonged to 
societies myself, in college; I have signed written constitutions, wuth a 
great many agreements in them about not divulging, and many other 
rules very much like those rules. Well, now, the constitution and agree- 
ment of those societies w'ere perfectly innocent, entirely so, so that any 
man might sign them without committing a crime ; might enter into such 
an agreement without being made a criminal. Take, for instance, my- 
self, signing such constitutions of §uch societies, can I be made a crimi- 
nal because some other member in that society had a criminal intent, or 
put a criminal interpretation upon the paper itself? Is there such a rule 
as that, that a man, who does understand a thing as it is to be under- 



203 

stood, puts a right interpretation upon it, so far as the paper shows, shall 
be bound by a criminal interpretation put on it by somebody else ? My 
objection, therefore, is to giving a character and construction of this 
paper by the . construction and interpretation put upon it by others. It 
is quite a different question, when you come to fulfill any purpose of this 
paper. What did they do ? — that is a very different question. 

The Court. Mr. Stanbery, the difficulty is this : They present a paper to 
the jury, which starts with a preamble and provision, which would indicate a 
society similar to a charitable association ; and then there is a clause which 
punishes anybody with death who shall disclose any of its purposes; and, 
in order to execute these charitable objects, men are required to go in dis- 
guise. It does not look much like a charitable association, and the ques- 
tion asks this witness to explain the meaning of that paper as his Klan 
understood it, so far as he knows, and we think it is competent. [To the 
witness]. What was understood in the meeting at which you were when 
you took that obligation, and what was the meaning of that paper? You 
were to put down Radicalism, and go in disguise, and suffer death if you 
divulged. Now, state hovv' you were to do it ? 

A. The understanding was, they never were to go in disguise only of a 
night ; show no signs in the day time. Towards the last of the Ku Klux- 
ing there was no man allowed to give any signs. 

Q,. What was the purpose of the order ? 

A. The purpose of the order? 

Q. Yes. What did you understand to be the general purpose of the 
order ? 

Mr. Stanbery. Does the Court allov/ that question ? 

The Court. We want to get what was the understanding of the persons 
who signed that paper. 

Q. Well, tell us what was the understanding of the persons who signed 
this paper ? « 

A. It was not to divulge any secrets; to attend all meetings ; to go on 
ail raids that was ordered. They were to be fined a certain fee, whatever 
the Klan pleased to put on them, if they did not. 

Q. What were the raids for? 

A. To put down Radicalism, the raids Avere for. 

Q. In vvhat way were they to put down Radicalism? 

A. It was to whip them and make them change their politics. 

Q. Is that your understanding? 

A. Yes, sir. That was my understanding about the matter. 

Q. That the understanding of the Klan ? 

A. I think it was, sir. 

Q. And all the Kians that you were acquainted with ? 

A. Yes, sir. 



204 

Q. What Klans were you acquainted with ? 

A. I was acquainted with Parker's Khxn, and before that — 

Q. What Parker ? 

A. Eleazor Parker. 

Q. Where was that Klan located ? 

A. It was in Union. 

Q,. What other Klans were you acquainted with ? 

A. None ; only Smith's. That was not to any account. 

Q. What Smith was that ? 

A. Aleck Smith. 

Q. Do you know any other Klans ? 

A. No. I heard of several, but then I don't know them to be regular 
organizations. Sniarr — Mat Smarr — had a Klan. 

Q. How many men in that Klan ? 

A. I don't know particularly. 

Q. Have you any idea ? 

A. No, sir. I suppose some twenty, thirty, or forty. 

Q. How many meetings of the Klan did you ever attend ? 

A. I was at one regular meeting ; that was when the Klau was organ- 
ized. Then I was on two other meetings after that to go on raids. 

Q. How many raids have you been upon by order of the Chief? 

A. Two, sir. 

Q. Now, will you state to the jury w hat was done on those raids ? 

A. Yes, sir. We Avere ot-dered to meet at Howell's Ferry, and went 
and whipped five colored men. Presley Holmes was the first tliey whip- 
ped, and then went on and whipped Jerry Thompson ; went then and 
whipped Charley Good, James Leach, and Amos Howell. 

Q. How many men were on these raids ? 

A. I think there was twenty in number, 

Q.. How were they armed and uniformed?* 

A. They had red gownis, and had white covers over their horses. Some 
had pistols and some had guns. 

Q. What did they wear on their heads ? 

A. Something over their heads came down. Some of them had 
horns on. 

Q. Disguise dropped down over their face? 

A. Yes, sir. 

Q. JIow many men were on that raid ? 

A. I think it was twenty in number. 

Q. What w^as the object in whipping those five men you have named ? 

A. The object was, in whipping Presley Thompson, about some 
tlireats he had made about him going to be buried in Salem grave- 
yard. 



205 

Q. What was the first to occur? 

A. Well, sir, this man Webber — he was leading the Klan from the 
other side of the river — ran into the yard and kicked down the door, and 
dragged him out, and led him off about two hundred yards, and strip- 
ped his shirt and whipped him. 

Q. How many lashes did they give him ? 

A. I cannot tell you how many. 

Q. Did they whip him severely' or not? 

A. I heard Mr. Smith say that he was sorry enough for him to cry; 
that his shirt was stuck to his back. 

Q,. What occurred at the next place? 

A. They v/hipped Jerry Thompson at the next place. They whipped 
him about some threats he had made about an old soldier. , He said he 
would kick the old soldier's hind parts. 

Q. That was the special cause ? 

A. Yes, sir ; and he was also a member of the League. 

Q. Was anything said about that when they whipped him? 

A. 1 think there was ; told him never to go to any more meetings ; to 
stay at home and attend to his own business. 

Q. What was done at the next place ? 

A. They went there and whipped Charley Good ; he was supposed to 
be an otficer in the League. He had been seen with his stripes on. They 
whipped him very severe ; they beat him with a pole and kicked him 
down on the ground. 

Q. What did they tell him ? 

A. To let Radicalism alone ; not to go to any more League meetings; 
if he did, his doom would be fatal. 

Q. The next place what did they do ? 

A. They went then to Charley Leach's, at Mathew Smarr's house. I 
didn't go into the yard there, I stood out in the road. They whipped 
him, though.- 

Q. Did they break down his door ? 

A. I think they did. 

Q. Hear anything they said to liim? 

A. I heard it, but could not tell what it was. 

Q. That is the first raid you were on ? 

A. Yes, sir. 

Q. Now tell us about the second raid? 

A. The second raid, we were ordered to meet in an old field, below Dr. 
Whiteside's. I don't know what the purpose of that meeting was. 

Q. How many men of the Klan did you meet there ? 

A. There were S(;rae seventeen or eighteen, I think. 
. Q,. Li disguise? 



206 

A, Yes, sir. 

Q. Tell us all about it ? Who was in command ? 

A. Julius Howe was leading the Klan that night. 

Q. Tell us where they went first ? 

A. The first place they stopped was at Mrs. Watson's ; called for a 
nigger there, but he was sick and they didn't disturb him ; went on then 
to Mr. Moore's quarter, and there they got a double-barrelled shot gun ; 
didn't whip anybody though ; went on then down to Theo. Byers' ; they 
didn't do anything there ; and then they went to Chancellor Chambers', 
and got a gun there. 

Q. From whom ? 

A. I don't know who they got it from. 

Q,. Colored or a white man ? 

A. Colored man. 

Q. Get it from his house ? 

A. Took it out of his house. I think it was an Enfield rifle, which 
had been cut in two. Went on then down to Ed. Byers' or Theo. Byers' 
place, I don't know which ; they whipped a couple of niggers down there; 
one pretty severe ; he was named Adolphus Moore. 

Q. (by the Court). Was he in bed when they got there? 

A. Yes, sir. 

Q. (by the Court). What time of the night was it ? 

A. I suppose between twelve and one o'clock ; might have been not so 
late. 

Q. What did you whip these men for ? 

A. I don't know; I never understood what. I think that the impres- 
sion was that they had been concerned in some burning, probably.. 

Q. Anything known about it? 

A. No. sir ; not that I know of. 

Q. (by the Court). How far from your house was it? 

A. About five miles. 

Q. Did you have anythiug personal against any of those men ? Did 
you know anybody in the Klan that did? 

A. No, sir ; I didn't ; no, sir. 

Q,. On these raids — these two raids — were you carrying out the gene- 
ral purpose of the order ? 

A. I think they were, sir. 

The Court). Ask the witness if these parties had had any trial. 

Q. Had these parties, who were whipped, been tried in any way ? 

A. No, sir; I don't think they had. If they hdd, it was unbeknown 
to me. 

Q,. When you went upon these raids were you under perfect discipline 
and control ? 



207 

A. Yes, sir ; pretty much. 

Q. That is, you obeyed the orders of your chief? 

A. I tried to do it, sir. 

Q. You have been a soldier ? 

A. I was a soldier for four years. 

Q. Most of the members of the Klau had been soldiers? 

A. I think so. Some of them were young boys ; they had never been 
soldiers. 

Q. Had the chief of the Klau been a soldier? 

A. Captain Mitchell ; yes, sir. He was a captain in the war, I think. ' — 

Q. During the late war? 

A. Yes, sir. 

Q. Well, then, he carried out military discipline while on the march, 
&c.? 

A. No, sir ; he never. I never was with him only one time, and then 
Weber led the raid that night. 

Q. Was there_ any other Klan joined you that night ? 

A. Yes, sir. We went as far as Ed. Byers', and there we met — I don't 

recollect — I don't remember the number of men — but we met some more C 

men there, said to be the Rattlesnake Klan, from Sharon. 

Q. Who was in command of that Klan ? 

A. They said Will Johnson. 

Q. Did 3'ou go on together after that ? 

A. Yes, sir ; went by Mr. Stenson's, and then down to Wilson Wil- 
son's, and they whipped him. 

Q. Tell us about that? 

A. The whole party stopped in his yard, and, after Mitchell's Klan 
went on, the Rattlesnakes went back and whipped him, and like to have 
killed him — so one of the men told me after he came back. 

Q. (by Mr. Stanbery). Do you know anything about it, yourself? 

A. I suppose I do ; if I did not I wouldn't be telling it. 

Q. How far w^ere you away from where this whipping was done? 

A. Well, sir, we started and went on down towards Bill Williams', and 
they overtaken us just before we got to Billy Wilson's. 

Q. Did they tell you about what they had done? 

A. Yes, sir. Hugh Kell told me. He said they whipped hira, and it 
was all they Could do to keep Will Johnson from killing him, 

Q. What did you do next ? 

A. They went down, they said, after a black man by the name of John 
Thompson, who was accused, I think, of some burning. They were 
going down to whip him, I think, and they got down there and found 
that Mr. Wilson was in his house, and went and called him out. 

Q. Is he a Avhite man ? 



208 

A. Yes, sir. 

Q,. What did you go for him for ? 

A. They said they were going down to talk to him. 

Q. What did you do at his house? 

A, They called him out and talked to him, and it Was all they could 

J\^ do to keep the others from going into the house to Mrs. Wilson. She 

had been confined in the afternoon, at 4 o'clock, and me and another 

young man kept them out. I knew the circumstances. He came out on 

the steps, and they talked to him. 

Q. What was he accused of? 

A. He was called a Radical in the neighborhood ; he had taught a 
-"^ nigger school and voted the Radical ticket. 

Q,. Was thiit the reason of your visiting him. Tell us what they 
said? 

A. They called him out and told him to let Radicalism alone. 

Q. What did you do to him ? 

A. Nothing, only talked to him. Some of them, I believe, punched 
him a little, and probably kicked him when he went back into the 
house. 

Q. Where next ? 

A. I didn't get quite througli then. 

Q. Well, go on and finish ? 

A. They told him if there was any more burning done within ten 
miles of his neighborhood they would take his life ; they would hold him 
responsible for all the burnings in the ueighborhoofl. 

Q. What did he say ? 

A. I don't know what he said. He didn't have much to say, no way. 

Q. Did anybody accuse him of burning? 

A. Not as I know of. 

Q. Anything further? 

A. The party went on back to their horses, then, and dispersed and 
went home — the Rattlesnakes went one way and Mitchell's Klau went 
" the other ; went on this side of Bullock's Creek, and there they took off 
their disguises. 

Q. Who took the disguises ? 

A. Captain Mitchell's son took care of them. 

Q,. Who usually kept the disguises? 

A. I think they were usually kept by Captain John Mitchell. 

Q. Brought out when you went on raids? 

A. Yes, sir ; the biggest part of them. Some of them kept their 
own. 

Q. What is Captain Mitchell's son's name? 

A. Joseph. 



- 209 

Q. "When you went out, Mr. Foster, did you usually know, in advance, 
what was their object ? 

A. Sometimes I did, and sometimes I did not. They did not allow 
me to know much about it, no way. Tiiey only wanted me to go. I 
Avas ordered to go on raids after that, but didn't go. 

Q. What raids ? 

A. I Avas ordered to make a raid on the treasury at Yorkville. 

Q. The County Treasury ? 

A. Yes, sir.' 

Q. Who ordered you to go on that raid ? 
• A. I got the order, specially, from Joseph Mitchell. 

Q. Did Mitchell tell you what they were going to do ? 

A. He did not; but I heard the next day where they had been. 

Q. What other raid was you ordered on ? 

A. That was all the orders that I ever had. 

Q. When you started out and went, whose orders did you obey ? 

A. I generally obeyed the orders of the person who was in com- 
mand. . 

Cross- examinai ion by 3Ir. Stanhery. 

Q. You spoke about burnings in that neighborhood — have there been 
burnings there ? 

A. Dennis Crosby had a gin-house burned there. 

Q. Who else? 1 

A. I don't know. Yes, sir ; Mr. Castles had his barn burned. 

Q. What neighborhood did they live in ? 

A. Mr. Castles lives within four miles of me, on the same road, to- 
ward Yorkville, and Mr. Crosby lives on the Pinckney Ferry Road. 

Q,. You spoke of threats, too ; what were the threats said to be ? were 
they threats of colored men, do you mean ? 

A. Yes, sir. 

Mr. Corbin. Well, he heard of them making threats. 

A. I heard of them making threats. 

Q. I want to know what were the sort of threats that was understood 
to be made? 

Mr. Corbin. We object to that, because, if they propose to show any 
justification of this course of conduct, adopted by the Klans, and that 
justification consists of threats, they must prove the threats, and not 
prove them by mere hearsay. 

The Court. It is no justification anyhow. 

Mr. Stanbery. Shall I put the question ? 

The Court. Yes. 
14 



210 

Q,. What sort of tlireats were they that tliey were understood to have 
made — these colored men ? 

The Court. Wh^t threats did you hear them make ? 

A. I didn't hear any threats made by them. 

Q. But what threats did you understand they had made? 

A. The first was whipping of Pressly Thompson ; was because he says 
he wanted to be buried in a white person's graveyard. 

Q,. And some other threats about an old soldier? 

A. That Jerry Tliompson had made, I suppose; that is what I have 
heard. 

Q,. What in regard to the old soldier? 

A. He should have said he would kick an old soldier's hind parts. 

Q. What is the nature of the Union League ? 
• A. I don't know anything about them. 

Q. Did you ever hear ? 

A. No, sir. 

Q. Who belonged to the Union League ? 

A. I don't know who. belonged to them — only what I heard. 

Q. What do you say about it ? 

A. Well, I heard that these niggers — 

Mr. Corbin. If hearsay testimony is to be heard here, I want to know 
it, and act accordingly. 

The Court. What is the question ? 

Mr. Stanbery. I asked him v;hat was the purpose of those Union 
Leagues. ' 

The Court. I don't see that that is admissible. 

Mr. Stanbery. It may be that it is a purpo'se that ought to be put down. 
I want to know what a Union League is. 

Mr. Corbin. Well, the witness says he don't know. 

Q,. Do you know any members of the Union League ? 

A. Only what I heard, and hearsays will do you no good, nor me 
neither, 

Q. I heard that those men belonged to the Union League ; did you 
hear those parties say that were in it what they understood tcTbe the ob- 
ject of the Union League? 

A. I did not. 

Q. Y/ere those burnings attributed to these Leagues, or members of 
it ? 

A. I do not know, sir. 

Q. What induced you to join the Kian? 
\ A. Well, sir, because this party came on me, and threatened my life ; 
sliot into the house I was doing business in. 

Q. What house were you engaged in at that time? 



211 

A. I was selling spirits and a few other g.oceries ; flour, tobacco, cau- 
dles and such other things. 

Q. And some parties called upon you ? Who called upon 5'ou ? 

The Court. A Klan he says. 

A. There was a Klan of Ku Klux came on me at night. 

Q. What night? 

A. Yes, sir ; the same night that they went on Elias Ramsay, and 
■whipped one of the whites the same night. 

Q. When did the Klan come upon you ; for what i:>urpose? 

A. I don't know, unless it was dissatisfaction in the neighborhood be- 
cause this liquor establishment was going on. 

Q. What did they say to you Avhen they came ? 

A. They didn't see me at all. I was not in the house ; but they left 
word with Mr. Osmond that they would come again; and when they came 
again they had the cold steel prepared for my carcass, and 1 thought it 
my duty to go into anything to save my life. 

Q. Then that was your inducement in joining the Klan ? 

A. That was my inducement in going into it. 

Q. That was to give you an opportunity to put the cold steel into some- 
body else ? 

A. Xo, sir. 

Q. How long did you continue 'n the Klan ? 

A. I joined just before Christmas, and never — well, I went on two raids,, 
and never had anything more to do with it afterwards. 

Q. Were you arrested as a member of the Klan ? 

A. No, sir ; I went up and made a confession. 

Q. Were you never in jail ? 

A. Yes, sir ; I was, but I suppose I was put there as a witnes.^. 

Q. Were you j)ut in there before or after you made your eonfes- 
siou? 

A. After I made the confession. 

Q. And you suppose as a witness ? / 

A. I suppose so. 

Q. Whom did you make your confession to ? 

A. Before Colonel Merrill and Major Corbiu. 

Q. Whereabouts? 

A. At Yorkville. 

Q. When? 

A. I don't recollect the date. I think it was on the seventh of last 
month, as well as I recollect. 

Q. How long after that was it before they put you in jail ? 

A. The same day. 

Q. After you had made your confession ? 



212 

A. Yes, sir. 

Q. How long did you remain in jail ? 

A, Until the 27th. 

Q. How did you get out ? 

A. I got out on a bond, sir. 

Q. What kind of a bond? 

A. I don't know what kind of a bond it was. 

Q. Before what officer ? 

A. Esquire Clawson brought the bond to me. 

Q. What jail were you in that time? 

A. I was in the Yorkville jail. 

Q. Was that jail under military rule at the time? 

A. Yes, sir. 

Q. Did Clawson come to the jail ? Did you send for him ? 

A. Yes, sir ; my brother was living there, and I suppose he fixed the 
paper. 

Q. Do you know what kind of a paper it was ? 

A. No, sir ; I do not: I think it was a bond for 8500. 

Q. After you had come out did you go and make a further confes- 
sion? 

A. Iso, sir ; I did not. Major Merrill sent for me to come up to his 
headquarters, and I went, and he told me to report to Lieutenant Nolan 
on Saturday, and I did so. 

Q. What took place ? 

A. Nothing more than he told me to report to get transportation, to 
go down, I suppose. I remained until Monday, and then came down. I 
got transportation from Lieutenant Noland. 

Q. Did you make any confession while in jail ? 

A. No, sir; I had no interview after I went into jail. 

Q, I understood you to say you supposed you were put in jail to keep 
you as a witness ? 

A. I don't know what they put me in for ; I supposed that was it, 
after they let me out. 

Q. Were you sent for by Major Merrill or Mr. Corbin, at the time you 
made your confession ? 

A. No, sir. 
• Q. You went voluntarily ? 

A. I went voluntarily. 

Q. Was anything promised to you in case you did make it ? 

A. No, sir. 

Q. Was that confession taken down in v>-riting ? 

A. I suppose it was, sir. 

Q. Who by? 



213 

A. I think tliat is the man, [pointing to Mr. L. F. Post, the steno- 
grapher.] 

Re-Direct Examination. 

Q. It has been inquired of about the fires; when did they occur? 

A. I don't know, sir. 

Q. About what time in the winter ? 

A. I cannot tell you that. 

Q. Before or after you joined the order ? 

A. It was after I joined the order that Crosby's gin house was burned ; 
and Mr. Castle's barn was burned the same night, after they weut on this 
raid. At 4 o'clock the barn was found on fire ; I did not see it ; I saw 
the light of it ; I saw Mr. Leach, and he said he saw the light, and went 
to it. 

Q. And that was after you had gone from the raid ? 

A. Yes, sir. 

Q. Did you whip any colored men around that place that night, at 
I\Ir. Castle's ? 

A. Yes, sir; they whipped one that had been at Mr. Castle's, and it 
was generally supposed that he done the burning. 

Q. But the burning occurred after the whipping ? 

A. Yes, sir ; at 4 o'clock on the same night. 

Q. When was it that these fires that have been talked about occurred, 
with reference to the burning ; was, the raiding first or the fires first ? 

A. This fire I was speaking of was done on the 29th of January last ; 
and we went on that raid that night, and this fire was at 4 o'clock the 
next morning. 

Q. When was the raiding up there commenced? 

A. The first raiding in the country up there ? The first raid that was 
done in our settlement was done on me. 

Q. When was that ? 

A. I don't know the date. 

Q. Was it before Christmas or after ? 

A. I think before Christmas a little while. 

Q. Just before you joined the order? 

A. Yes, sir. 

Q,. Were there other raids made around there about that time ? 

A. Yes, sir ; it was not very long after that I think they made this 
raid on Pressley Holmes. 

Q. What caution, Mr. Foster, did ]M3Jor Merrill give you at the time 
you weut to make your confession ? 

A. I don't recollect. 



214 

Q. Before you commenced, at the time you went to make the confes- 
sion, what did he say to you before you made your confession? 

A. He told me he wanted me to tell him the truth, and I did, as far as 
I knew. 

Q. Did he make you any promises if you told the truth ? 

A. No, sir; he did not make any promise at all. 

Q. Did he hold out any inducement? 

A. No, sir; he did not promise me anything at all. 

Re- Cross Examination. 

Q. Did he say it would be better for you ? 

A, No, sir ; he didn't say anything of that kind. 

Q. Was there a state of terror and alarm about that part of the coun- 
try at the time among the white people ? 

A. Yes, sir ; they Avere arresting almost everybody. 

Q. Any about the time of these raids ? 

A. Not a great deal. 

Q,. But was there any excitement ? 

A. There was some excitement. 

Q. What about ? 

A. I don't recollect what it was about. About this society. 

Q,. What society ? 

A. This Ku Klux society. 

Q. Was there any cause of alarm in that part of the country ? 

A. No, sir ; I did not hear of any. 

Q. What time was Ellison's mill burned ? 

A. I don't know what time. 

Q. Was that in the neighborhood ? 

A. No, sir ; I don't think it is. 

Q. Do you know where it is? 

A. I don't know where it is. I have heard of it, and about its being 
burned after 'twas done. 

Q. When did you hear it? after the burning Avas done ? 

A. I cannot tell you. ' 

Q. After, or before you became a member of the Klan ? 

A. I think it was after, or probably before ; I cannot tell you. 

Q. Was Ellison's mill the first burning you heard of? 

A. I don't recollect whether it was or not. 

He-Direct Examination. 

Q. Had you heard that Mr. Ellison had said that he knew that a 
white man had burnt his mill ? 
A. No, sir. I did not hear that. 



215 

TESTIMONY OF OSMOND GUNTHOKPE. 

Osmond Gunthorpe, a witness for the prosecution, being duly sworu, 
testified as follows : 

Direct Examination by Mr. Corhin. 

Q. Where do you reside ? 

A. I reside in York County. 

Q. How long have you lived there ? 

A. About eighteen years, sir. 

Q. State whether you joined the Ku Klux Klan, and when. 

A. I joined it, sir, in 18G8, in the month of August; I am not certain 
about the date. 

Q. Where ?^ 

A. Down near Ebenezer. 

Q. In York County ? 

A. Yes, sir. 

Q. Who initiated you ? 

A. Dr. Edward T. Avery. 

Q,. Can you give us the substance of the oath you took ? 

A. ]^o, sir ; I cannot. 

Q. What was the general import, so far as you can recollect? 

A. I cannot recollect near all of it ; that we Was opposed to the Radi- 
I cal party ; and we was to protect fellow members' widows and their ^' 
households, female friends, and I believe that was about all. 

Q. And what was the penalty ? 

A. The penalty for divulging the secrets of the organization was 
death. 

Q. What was the mode in which the purposes of the organization was 
to be carried out — this opposing the Radical party ? / 

A. I think it v/as the intention of the organization to control elec- 
tions. 

Q. E[ow were they to do it ? 

A. At that time, the understanding I had was to do it by intimida- 
tion. 

Q. Did you have any order to go out and assist in that business ? 

A. No, sir ; I never received one. 

Q. Did you have any notice to go to Rock Hill ? 

A. No, sir. I received no notice; but, I understood, the day of elec- 
tion, in 1868, they Were not to use any force, but, by crowding the box, 
they were to keep all from voting they could. 

Q. All who ? 

A. All of the Radical party. 



216 

Q,. Who wore they to keep away from the polls. 

A. All I understand was, they were to keep ail the Radical party 
from voting they could, by crowding the ballot box. 

Q. What did you do then ? 

A, I never went to the election at all. 

Q. What did you do in reference to the order ? 

A. I left it, sir. 

Q. Why? 

A. Because I believed it v/as not what I thought it to be. I didn't 
understand, when I went in, that it was a political organization, and I 
saw it was, and it was oi these grounds. 

Q, What did you think it was before you got into it ? 

A. I thought it was an organization for the protection of each other, 
but riot to interfere with any other party. 

Q. When you came inside of it, what did you find it to be? 

A. I found it to be a political organization, to try to control the elec- 
tions for the Democratic part}^ at that time. 

Q. What did you conclude in reference to it, a-nd what did you do in 
reference to it ? 

A. I did nothing more. 

Q. How did you get out of it ? 

A. I got a dismission, sir. 

Q. From whom ? 

A. Dr. Avery. 

Q. How did you get it ? 

A. I asked him for it, and he gave it to me in writing. 

Q. Vfhat reason did you give him? 

A. I told him that I was going away, and I wanted a dismission, and 
that I was not satisfied. 

Q,. And you received that dismission ? 

A. Yes, sir. 

Q. Have you got it now ? 

A. No, sir ; I have not got it. 

Q. Have you had anything to do with the order since ? 

A. No, sir. 

Q. Have you lived in York County since ? 

A. Yes, sir. 

Q; What part of it ? 

A. In the southwestern portion of the County; in Cherokee township* 

Cross- Examination by Mr. Stanbery. 

Q. I understand you to say that, when you oined the order and took 
the oath, you had no idea it had any political significance ? 



217. 

A. No, sir. 

Q. What did you understand was the purpose of the order when you 
joined it ? 

A. I understood it was an organization for the protection of each 
other against anything that might come up against us. 

Q. What was the apprehended danger ? 

A. There was a general talk that there was a danger of the negroes 
rising. 

Q. You thought it serious enough to join this order ? 

A. I didn't know but what there might be something like it. 

Q. And therefore you joined the order, as an order for common pro- 
tection ? 

A. Yes, sir ; that was what I understood when I joined it. 

Q. And, when you came into the order, you took the oath, in the first 
phxce ? 

A. Yes, sir. 

Q. Was that read to you ? 

A. No, sir ; it was not read to me — it was repeated to me. 

Q. Have you heard this oath read here ? 

A. Not to-night. I have heard it read. 

Q. Well, we will read it to you. Have you seen the oath since ? 

A. Yes, sir. 

[The counsel read the oath, and the witness recognized the parts in 
reference to the Radical party, to sickness, to females, and to the death 
penalty.] 

Q. Then, so far as I have read this oath, it was the oath you have 
taken ? 

A. So far as I can recollect. 

Q. Yv^ell, when you heard it, were you willing to take it ? 

A. I did take it. 

Q. How long afterwards did you understand it was something else 
than what that oath stated ? 

A. Not long. 

Q. You didn't discover it until afterwards ? 

A. Not until I was initiated into the order. 

Q. Then you didn't know, at the time, that there was anything illegal 
in it ; but, after you were in, you understood their purpose was some- 
thing different — a political purpose — and then you wanted to leave ? 

A. Yes, sir. 

Q. Now, you say, you understood the purpose to be political — how far 
political ? 

A. They intended, if they could, to control the elections. 



■ . 218 

Q. You say, here, that they were going to the polls, and keep voters 
away fi'orn the polls ? 

A. That was the understauding I had, \»hat was to be carried on at 
Rock Hill, at the election in 1868. 

Q. You spoke about the crowding around the polls and excluding 
them in that way ? 

A. Yes, sir. 

Q. And you understood the agreement was that no force should be 
used ? 

A. Yes, sir ; no force should be used. 

Q. Did you ever know anything about the Union League? 

A. Ino, sir; I don't know anything about it. 

Q. "Whether that is a political organization or not, you don't know ? 

A. I dont know a thing about it. 

Q. Have you attended the elections in that County for some time past? 

A. I attended the last election, sir ; last year," in October. 

Q. Was anybody interfered with ? 

A. No person that I know of 

Q. Was there any crowding around the i)olls so as to exclude any- 
body ? 

A. Xo, sir ; not at the box I was at. 

Q. Any man that had a right to vote voted without any interference ? 

A. Yes, sir. 

Q. Have you ever been at an election at Rock Hill ? 

A. Not since then. 

Q. Only that once ? 

A. I was not at it, sir. 

Q. You have jaever seen anybody interfered with at an election ? 

A. I have never been at any election since last year, and nobody was 
interfered with at that. 

Q. Were there many voters there ? 

'a. Yes, sir ; a good many ; I don't recollect the number. 

Q. Colored and white? 

A. Yes, sir ; there was both. 

Q. And no man was interfered with whatever ? 

A. Not that I know of 

Q. Well, in that election, who succeeded? 

A. The Radical party — well, at that precinct where I voted, the Dem- 
ocratic party was in a large majority. 

Q. Then, you saw no attempt, on their part, to keep Republican vo- 
ters away ? 

A. No, sir ; I did not see any. 

Q. How does the population stand there ? 



219 

A. I dont know, sir ; I suppose it is aloout three or four to oue. 

Q. Three or four vrliites to one colored ? 

A. Yes, sir; but I am not certain, but would say three to one, any- 
how. 

Q. Now, at this particular election they were to stand around the polls, 
you were not there ? 

A. No, sir. 

Q. What election was that ? 

A. The Presidential election. 

Q. Who told you that they were going to get around the polls ? 

A. Mr. Cathcart. 

Q. Any body else ? 

A. No, sir; he was the one that told me. 

Q. Who did he say was going ? 

A. He didn't say. He just said that they had a meeting and agreed 
to do that. 

Q. Did you understand whether or not any force or intimidation was 
Used '? 

A. No, sir ; I heard nothing more ; I started the next day after the 
election to move up to Cherokee Township. 

[The District Attorney here noticed that the prisoners who were in- 
cluded in this indictment, and who were to be used as witnesses, were 
sitting in Court, and desired their removal. They were, accordingly, 
removed.] 

Q. At the time you joined the order was there a state of alarm in the 
neighborhood ? 

A. None; well, tliere was some little about negro alarm. 

Q. Well, about what? 

A. There was a talk that the negroes were up in arms, and they were 
afraid that they would do something. 

Q. Were they armed ? 

A. I never saw any armed, but I heard that they were. 

Q. There were reports that they were armed, and there were fears that 
they would use their arms ? 

A. Yes, sir, there was such talk. 

Re-dired Examination. 

Q. Were the white men generally armed ? 
A. They generally had arms of their o^ti, sir. 
Q. Was there any fear, generally, pervading the community? 
A. I only heard the talk ; I never was alarmed. 

Q. How many more white men did you say than colored men were 
there ? 



220 

A. In Cherokee Townsliip, I think about three to one. 

Q. Were there Jiny militia ? 

A. No, sir ; not in Cherokee Township. 

Q. None there ? 

A. Only the Constabulary force was up there after they commenced 
making the raids on said County. 

Q. AVhen was that? 

A. It was — I declare I cannot tell the date — but I think it was in 
1870. I v/as up there after there were some raids made. There was a 
house burned in the County, and several men threatened. 

Q,. By wiiom were the raids made ? 

A. Said to be done by the Ku Klux. 

Q. Any fires ? 

A. There Avas a house burnt ; Bill Wright's house. 

Q,. By whom ? do you know? 

A. I don't know the parties. 

Q. Who were accused ? 

A. Said to be white ; or said to be Ku Klux. 

Q. Do you know anything about the burning? 

A. No, sir ; only that I just heard it was done. 

Q. Subsequent to that ? 

A. There has been none done in that County since that time. 

Q. That was the only house burned ? 

A. Yes, sir. 

Q. Any raid about there ? 

A. Yes, sir ; there had been raiding. 

Q. When did the raiding begin after the election ? 

A. Well, not long, sir. I don't know how long, but not very long. 

Q. Did any fires precede that ? 

A. None only what I speak of, but that, was done ; there has been 
no burning in that County near me, only that. 

Q. Did the raiding continue after the election ? 

A. Yes, sir. 

Q. How long after? 

A. I cannot tell you how long, sir ; not long, though. 

Q,. How long after the election was Tom Roundtree killed ? 

A. He was killed on the second night in December. 

Q. Last December ? 

A. Yes, sir ; this December a year ago. 

Q. Who was Tom Roundtree? 

A. He was a black man. 

Q. What position in his race ? 

A. He occupied no position at all. 



221 

Q. What was his choa'acter ? 

A. I never knew anything bad of the nigger. 

Q. What was his politics ? 

A. He did not meddle in politics much, I don't think. I never heard 
him say anything about it. . 

Q. What was his politics ? 

A. He belonged to the Radical party. 

Q. Who killed him ? do you know ? 

A. No, sir, I don't know. 

Me'Cross-Examination. 

Q. Do I understand you to say you joined that Klau for mutual pro- 
tection ? 

A. I understood that they were afraid that there would be something 
done, and they wanted to do something to counteract it ; they wanted to 
be ready. 

Q. Were you afraid, also? 

A. Oh! why I was afraid was this: If there was such a thing done, I 
might suffer with the balance. I was not afraid at the present time; but 
if everybody was afraid, I might be injured too. 

Q. Therefore, you thought it expedient to join this Klau for mutual 
protection against harm ? 

A. Yes, sir. 

Q. Then you w^ere sufficiently alarmed ? 

A. Well, I just looked at if in this way : If they wanted to be ready, 
in case of auy such thing, it was no harm to be prepared. 

TESTIMONY OF ANDY TIMS. 

Andy Tims, witness for the prosecution, being duly sworn, testified as 
follows : 

Direct Examination by Mr. Coroin. 

Q. Where do you live ? 

A. About nine miles from York, sir; Brattonsville, in York County. 

Q. How long have you lived there ? 

A. I have been living in York County now for about seven or eight 
years, sir. 

Q. Do you know Jim Williams ? 

A. Yes, sir ; I knew him before he died ; had been knowing him for 
some fifteen or twenty years. 

Q. Was Jim Williams a resident and voter in York County ? 

A. Yes, sir ; he was. 



222 

Q. Did he vote there at the last election ? 

A. Yes, sir ; he did. 

Q. Were you present at the polls ? 

A. Yes, sir ; I was Manager at the polls. 

Q. Did you see him vote ? 

A. He handed me the ticket and I put it in the box. 

Q. What ticket did he vote? 
-— -^ A. He voted a Republican ticket ; he was a Republican. 

Q. Vv^hat sort of a man was Williams ? 
\ A. I did not know anything about him ; he"was dead last — he was 
hung. 

Q.. Tell us the story in your own way ; how about it ? • 

A. It was the way I first found him — he was hanging up by the neck 
by a rope. 

Q. Tell all the particulars you know about it ; what occurred that 
' night that he was hung ; and what about him, as far as you know? 

A. That night, sir, I think it was something after 2 o'clock, there 
Avere three diguised men came to my house, came up cussing and swear- 
ing a great deal. 

Q. Tell what they said. 
I J A. They said : " Here we come — we are the Ku Klux. Here we come, 
Y right from hell," and two rode up on one side of my house, and one to 
A the other. They commenced with their guns and beat at the doors, and 
\ hollering "G — d d — n you, open, open the doors." I told them I would, 
and jumped out of bed, and before I got to the door they bursted 
the latch off, and two came in, and one got me by the arms and says, 
" we want your guns." I told them I didn't have any guns ; there was 
one there, but not mine. It was turned over by some of the company. 
Thev got the gun, and asked for the accoutrements belonging to the gun, 
and I got them for them ; and after they got these things they asked for 
a pistol ; I told them I didn't have any pistol at that time ; and then 
they asked if I knev; where Captain Williams lived ; I told them I did ; 
how far? they asked ; I told them about two miles, I think ; says he, "we 
want to see your captain to-night; we don't want any more of you 
to-night." Upon this they got on their horses ; asked me if I knew any 
of .them; I told them I did not know them; hnt they got on their horses 
and bid me good night ; when about between fifty and one hundred 
yards from ray house they stopped, talking very lowly to each other ; I 
didn't know but what they were going to come back ; I jumped out and 
made — well, I started down across to the other house, and met up with 
Henry Haynes and Andrew Bratton; they heard them and left their 
houses. 

Q. Were they colored men ? 



223 

A. Yes, sir ; then we went down to Captain Williams' that night; 
when we got there Mrs. Williams was sitting in the door ; I asked her — 
I called before I got to the house for Williams, and she said — ^ 

Mr. Stanbery. ^N^ever mind what she said. 

Mr. Corbin, Go on and tell what she said. 

The Court. No. 

Q. Go on and tell what you found ? , 

A. Williams was not there. 

Q. What occurred there ? 

A. Then we went from there ai'ound and passed where Mr. Williams' 
company were, and got them and went back to John S. Bratton's, and 
there found a good portion of the company there. 

Q. What company ? 

A. Of Williams' company — the militia ; we then followed the course 
■which the Ku Klux had went ; Ave tracked them then, by bayonets and 
accoutrements, &c., they had dropped along the road, until they came to 
Mr. Robert Lindsay's ; then we noticed a great many tracks left the 
road ; we went on from there past Mr. Ed. Crawford's, and on past Mr. 
Mendiuhall's ; the company thought that they saw hQi'se tracks — a horse 
and a mule track — that led into Islv. Mendinhall's lot, but Mr. l^Iendin- 
hall's stables were locked ; we went on from there, on several tracks, to 
Mr. Garwiu's, and there we found a mule Avhich was muddy and sweat 
ing, with saddle ; very fresh tracks, which we did think had come from 
the road, which we tracked out from the road ; they tracked directly 
from Mr. Lindsay's ; Ave tracked them directly from there ; we then went 
into the blackjacks, and concluded to hunt for Williams; we AA^ent across 
the country to Williams', and before Ave got to the house we saAv the 
tracks, where they had come out of the field ; Ave pursued on until we 
came to Avhere the horses Avere hitched, which I thought was about one 
hundred yards; we saw Williams hanging on a tree. 

Q. W s he d ■ d ? 

A. When I found him he was dead, sir. 

Q. What time in the morning was that that you found him ? 

A. Sir, I think between nine and ten o'clock, sir. 

Q. What paper did you find on him, if any ? 

A. There was a paper on his breast ; the foreman of the jury said it 
said " Jim Williams on his big muster," 

Q. i ow i igh Avas he hanging from the ground? 

A. Kis toes were just touching the pine leaves. 

0,. Was he cold ? 

A. I di 'n't put my hands on him at that time. 

Q. HoAV long did he hang there ? 

A. He hung iht-re till I don't tliink the sun Avas more than half an 



224 

Iiour high that evening, when he was cut down ; I went from th.ere to 
York, after the Coroner ; he hung there till we came back, and the jury- 
all met. 

Cross-examination by Mr. Hart 

Q. Who w'as Jim Williams ? 

A. He was formerly called James Raiuey. 

Q. But what was his position ; what was he ? 

A. He was a Re]3ublican man. 

Q, But vrhat official position did he occupy? 

A. For labor, or what ? 

Q. No ; what official position in the Government? or did he occupy any 
at all ? 
_ A. He didn't occupy any ; only Captain of a company. 

Q. Was that company armed? 

A. Yes, sir. 

Q. What with ? 

A. With Eufield rifles ; or, I believe that was Avliat they called 
them. 

Q,. Breech-loading rifles ? 

A. Yes, sir. 

Q. Was ammunition served out to them ? 

A. I think they got as much as two or three balls apiece. 

Q. How long before the elections ? 

A. I don't recollect how long, but I think they hadn't more than sx 
ball apiece, or hardly that, at the election ; a great many had none. 

Q. They fired away a good deal before the election ? 

A. Yes, sir ; trying their guns. 

Q. How many rounds were given out to them ? 

A. Never more than two or three rounds. 

Q. You were Lieutenant in that company ? 

A. No, sir ; I was not. 

Q. You never was ? 

A. No, sir. 

Q. Were you an officer iu the militia ? 

A. I was clerk of the company, sir. 

Q,. Did you issue the ammunition to the members of the company? 

A. I did not, sir ; I did not belong to the company at that time ; I was 
with it a great deal, but did not belong to it at that time. 

Q. Had there been any raids made in that community previous to the 
October election ? 

A. Before that ? 

Q. Yes. 



225 

A. 'No, sir ; not there. 

Q. Had there been none ? 

A. No, sir. 

Q,. You wenr"to the election in October, 1870 ? 

A. Yes, sir ; I did. 

Q. Where did you vote ? 

A. I voted at McConncllsville. 

Q. Did this militia company go there to vote ? 

A. Yes, sir. 

Q. Did they carry their side-arms ? 

A. They didn't carry any guns there at all. 

Q. How far from there did they leave their guns? 

A. About three or four miles, sir; about three, anyhow. 

Q. How many of them left their -guns at Shook'ss, a short distance 
from there ? 

A. Well, if there was any left, it was more than I know. 

Q,. Was there a meeting of that company the night before the elec- \ 
tioa ? 

A. There was a meeting in advance of the election. 

Q,. Were the members of that company ordered to carry their side- 
arms, or not ? 

A. That was not the order — to carry them. 

Q. But an agreement to carry them ? 

A. The agreement was that no one should carry any arms. 

Q. Well, they did carry their side-arms, their bayonets, etc. ? 

A. Some of them, I think, did ; yes, sii", some of them did; there was a 
great many arnjs there. 

Q. Were you a member of the company "at the time Mr. IMendiuhall 
was arrested ? 

A. I was not, sir ; I was not a member of the company until after the 
arms were dra\Yn: 

Q,. JPld you know of it, that Mr. Robert Mendinhall was arrested by 
order of the Captain ? 

A. I does not, as a matter of fact ; I was not there. 

0. How long was he kept under arrest, according to report ? 

Mr. Corbin. That vron't do. 

The Court. That won't do. 

Q. You "were not there when that occurred ? 

Mr. Corbin. What occurred ? 

Mr. Hart. Mr. Mendinhall's arrest. 

A. No, sir ; I was not there. 

Q. HoAv often did this company meet to drill last fvM and winter ? 

15 



226 

A. Well, sometimes every two weeks, and sometimes every Saturday 
evening. 

Q,. Squads of this company were frequently upon the field, and drilling 
around ? 

A. \Yell, I never saw them at that. 

•Mr. Corbin. If the Court please, we cannot see the relevancy of this 
'sort of business. 

The Court. We cannot see the relevancy of it ourselves. 

Mr. Hart. The relevancy is this — 

;;\Ir. Corbin. Go on ; we won't interfere with you. 

€>. Do you say that scjuads were out ? 

A. I say they were not, to my knowledge. 

Q. The company were not firing guns, then, at night, to your knowl- 
edge ? 

A. I have heard guns fired at night, sometimes ; I don't know whether 
it was them guns or not. 

Q,. Did you meet members of this company, at night, with their arms, 
traversing the country ? 

A. There was a great talk of Ku Klux coming there. I did see some 
of them there with their guns. 

Q. But no Ku Klux had been there. 

A. They had not been then, but it was heavily threatened. Never 
saw them, though, on the by-road. 

Q. How did you know that the Ku Klux were coming there ? 

A. It was generally reported that they were coming. 

Q,. Y/ho told you ; tell me somebody ? 

A. It was just the settlement talk ; there was talk of it around. 

Q,. Do you know that there was any uneasiness felt in that County on 
account of those guns being fired at night ? 

A. The gentleinen of that country told me that they were not uneasy 
about the guns. 

Q. Do you know' that there was any uneasiness from other parties ? 

A. I don't know, sir, for I don't think that there was any danger in it 
myself. 

Q. You don't think so ? 

A. ISTo, sir ; I don't. 

Q. You did not feel uneasy from it ? 

A. I did not, and I did not think there was any reason for uneasiness ; 
for any one feeling it. 

Q. Do you know whether Jim Williams, your Captain, had any com- 
munication with Mr. Ed. Rose, at Yorkville, or not ? 

A. I never Heard any myself, sir. 

Q. Kow I am coming to a point. Y'ou will, perhaps, recollect I callec? 



227 

your attention to a conversation you had with myself in my office. On 
that occasion, do you recollect your Captain, Jim Williams, saying Mr. 
Rose had given him some instructions what to do about burning 
houses ? 

A. I did hear that reported. 

Q. You did hear that? 

A. I heard it reported. 

Q. How long was that before this hanging took place ? 

A. It was some time beforehand, sir. 

Q. What were those instructions ? 

A. W^ell, if the Ku Klux got to killing, and was killing off the black 
people, as well as I understood, it was then for them to burn the houses. 

Q,. You heard that from Mr. Williams ? 

A. I heard it reported from others. 

Q. You heard it from him also ? 

A. I did not hear it myself. 

Q. You heard the report that he gave instructions ? 

A. I heard that. 

Q. What office did Mr. Rose hold ? 

A. He was a tax collector, as far as I know. 

Q. County Treasurer ? 

A. Yes, sir. 

Q. What was his politics ? • , 

A. He Avas a Republican ; so I was told. 

Q. Did you hear them mention it at any meeting of the company? 

A. I did not, sir. 

Q. When you went down to see John Bratton, you found part of Jim's 
company there, at Mr. Bratton's ? 

A. Yes, sir. 

Q. With their arms ? 

A. Some of them had ; the Ku Klux had taken a good many. 

Q. Where did they come from ? 

A. At the plantation, there Avas a good many. 

Q, Mr. Bratton's plantation ? 

A. Yes, sir ; in fact, all that were there lived on his land, or about it. 

Q. Did you ever hear such an expression as this, coming from Jim 
Rainey : That every time he heard of any Ku Klux being in the County 
he was instructed to burn a house. 

A. No, sir. 

Q. Did you ever hear this : That if his party did not carry the last 
election, he expected to use up the country, or expressions of that sort ? 

A. I never heard him say that ; I never heard him say it, or never 
heard of him saying it. 



228 

Q. Did you ever hear an expression from himself of this kind : That 
\:if his party failed he expected to kill from the cradle to the grave? 

A. I heard that from Ed. Crawford ; the night he was hung, the night 
he came on me for the guns, he told me that. 

Q. (by Mr. Corbin). AVluit raid was that ? 

A. AVhen they came to take the Scott guns. 

Q. (hy Mr. Corbin). How long after the murder ? 

A. The third night afterwards ; he said he expected Jim Avas killing 
from the cradle up now. 

Q. You say you voted at McConnellsville ? 

A. Yes, sir ; I did. 

Q. Did anybody try to interfere with you fur voting, or did anybody 
try to interfere with Jim Williams for votiug ? 

A. Not that I know of. 

Q. You saw him vote ; nobody attempted to interfere with him ; there 
was no disturbance that day ? 

A. No, sir ; there was not on that day ; tliey was prepared for a large 
one though, but it did not come on. 

Q. Who was prepared ? 

A. The Conservative party came there armed. 

Q. Did you see their arms ? 

A. I did, sir ; I saw a great many of them. 

Q. The colored people carrieok their side arms ; their bayonets ? " 

A. Yes, sir. 

Q. And yet no disturbance occurred ? 

A. There w-as no disturbance that day ; the election went off very 
pretty. 

Q,. You say these guns had been put into the hands of your company ; 
how long before this election ? 

A. They received the guns on the 16th day of August ; tlie election 
occurred about the 19th of October. 

Q. AVasu't it about two months afterwards ? 

A. I think so, sir. 

Q. Your company then met to drill previous to the election? 

A. Well, they had drilled right smart. 

Q. Drilled twice a week previous to the election, didn't they ? 

A. No, sir ; they drilled every Saturday a while, and every two weeks, 
and so on. 

Q. After the election you didn't drill so often ? 

A. They drilled all the time on until towards Christmas. 

Q. After the election it began to slacken off? 

A. Well, they drilled on for some time ; along two or three weeks before 
Christmas they didn't drill any. 



229 

He-direct Examination. 

Q. Where is Ned Crawford now ? 

A. I liave not saw him for a great many — for several weeks before 
I left home. 

Q. What has become of him ; do you know ? 

A, They said he left the County. 

Q. When did he leave ; do you know? 

A. Well, I does not exactly; I saw him, I think, about a few days 
before they began arresting in Yorkville. 

Q. Have not seen him since? 

A. No, sir. 

Q. How far does he live from you ? 

A. Betv/een two and three miles, sir. 

Q,. How long did he reside in York County ? 

A. He had been there then about eighteen years, probably longer. 

Q. White or colored ? 

A. He was a colored man, sir. 

Q,. You were Manager at the election, I understand? 

A. Yes, sir. 

Q. When Jim Williams came to vote? 

A. Yes, sir. 

Q. Did you regard him as a qualified voter? 

A. Yes, sir ; I did. 

Q. Did he swear to his qualification ? 

A. Yes, sir ; he did. 

Q. And you allowed him to vote ? 

A. Yes. sir : I did. 

lie- Cross Examination hy Mr. Stanhery. 

Q. This military company — was it for it the arms wore brought 
there? 

A. Yes, sir. 

Q. Tell us how many were in the company, you think ? 
A. There was about ninety. 
Q. All colored men ? 
A. Yes, sir. 

Q. And the captain of your company was this Williams? 
A. Yes, sir. 

Q. Who gave you these arms ? 
A. Well, I don't know, sir ; he gave them himself. 
Q. You had got a musket, hadn't you ? 
■ A. I had not, sir ; I only had — 



230 ' 

Q. Had eacL. one of the eonapany a musket or rifle ? 

A. I dou't know what 3'ou call them. 

Q. Where did those arms come from? 

A. They were said to be sent to the company by the Governor ; that 
was what was said, I dou't know ; I did not see the papers. 

Q. And those balls and those cartridges ? 

A. I cannot give any account of them whatsoever. 

Q. And this powder, as well as balls already made? 

A. There was nothing, only balls already made and fixed, 

Q. Fixed ammunition ? 

A. Yes, sir. 

Q,. That is, you mean cartridge — ball and powder together? 

A. Yes, sir. 

Q. And three cartridges you understood ? 

A. Well, some got three and some got two. 

Q, Was it necessary in your drilling to have that ammunition ? 

A. They did not drill with it, as I know of. 

Q. What was the ammunition for ? 

A. I never inquired nothing about Avhat it was for. 

Q. Who were these cartridges to be discharged against ? 

A. No person, to my knowledge. 

Q. What did they want with them ? 

A. I don't know. 

Mr. Corbin. I would like to know if he is to be interrogated as a mil- 
itary expert ; I want to know the object of this examination. 

Q. Was there any white company in that neighborhood furnished 
with the same sort of arms ? 

A. No ; there was none furnished with the same sort of guns ; there 
^ was one raised, and the captain said he asked Scott for guns, but he 
didn't get them, and, of course, it insulted his company, he said. 

Q. But you don't know of any wdiite company getting guns ? 

A. No, sir. 

Q. None but your company got guns? 

A. No, sir ; I didn't say that ; some of the companies got guns ; one 
in York and one in Rock Hill. 

Q. Were they white or colored people ? 

A. Colored people. 

Q. AVere they furnished w'ith ammunition too ? 

A. I don't know anything about, that. 

Mr. Corbin. If the Court please, there is no end to this testimony. 

The Court. How does this tend to show the issue here. 

Mr. Stanbery. If the Court please, the purpose is to show the whole in- 
tent of the purpose. 



231 

The Court. This vras all subsequent to the formation of the con- 
spiracy. 

Mr. Stanbery. It was not subsequent to the overt act; it was prior to 
that time, and we want to show that the overt act v/as connected, not 
with the voting matter, but with this arming matter and the danger ap- 
prehended. 

The Court. Yf ell, the overt act has nothing to do with it. That con- 
spiracy may have done a great many things besides that overt act. It is 
a question of conspiracy, and it can hardly be evidence, either to rebut 
the evidence of the United States, or support the plea of not guilty, that 
a militia company had been formed after the formation of the conspi- 
racy." 

Mr. Stanbery. AVhy, if the Court please, I understand that the only 
reason why your Honors allow this testimony to go on is that it is an act 
in pursuance of the conspiracy — an overt act. 

The Court. What, the arming of a militia company ? 

Mr. Stanbery. Xo, this hanging of Rainey. Your Honors allowed them 
to give testimony as to that; it must have some relevancy to the conspi- 
racy, or it means nothing — it is an independent murder. They have not yet 
shown that it was connected with the conspiracy; we Avant to show that 
there was a totally different intent from that of preventing voting ; that 
the cause of the hanging of Rainey was owing to the negroes having been 
armed, and to the threatenings made by Rainey, the captain of the com- 
pany. AVe expect to show that he was a very dangerous man, and had 
been furnished with arms and amralmition, and that he had made threats 
over the County of what he was going to do with the white people. 

The Court. Well, are you done with the witness ? 

/ Re-Direct Examination. 

Q. What was the date of that murder ? 

A. It was on the first Monday in March ; I don't remember the date. 

Q. Last March? 

A. Yes, sir. 

testimo:ny of gadsdejj steel. 

Gadsden Steel, a witness for the prosecution, being duly sworn, testified 
as follows: 

Direct Examination hy Mr. Corbin. 

Q. Where do you live ? 
A. In North Carolina. 
Q. Where did you live lastspring — in March? 



282 

A. Near Yorkville and McConnellsville, York Couuty. 

Q. How loug liad you lived in York County, prior to that time ? 

A.. Until about the middle of April. I moved to North Carolina about 
the middle of April. 

Q. How long had you lived ia York County before you moved to jSTorth 
Carolina? 

A. Until that time, all my life. 

Q. Were you a voter in York County ? 

A. Yes, sir. 

Q. Vote at the last election ? 

A. Yes, sir. 

Q. Are you twenty-one years of age ? 

A. Twenty-six. 

Q. What ticket did you vote ? 

A. 'Voted the Radical ticket. 

Q, Vote for Mr. Wallace ? 

A. Yes, sir. 

Q. Now, tell the jury about the Ku Klux coming to your house last 
March, on the night that Jim Williams' was killed ; what they said and 
did, and what you said, and all about it ? 

A. They came to my house on a I^Ionday night. 

Q,. What Monday night was that ? 

A. I don't exactly know what day of the mouth it was. 

Q. Well, sales day, in March ? 

A. No, sir; I don't exactly know. 

Q. Which jMonday ? 

A. It V;as on a Monday night ; I don't know what day of tlie month it 
was. 

Q. The first or third ? 

A. I don't know exactly whether it was the first or third; I cannot ex- 
actly tell. 

Q. Very well, tell what occurred ? 

A. They came to my house about ten o'clock, and I was in bed at that 
time ; and I was asleep ; and my wife she heard them before I did, and she 
shook me and Vv'oke me up, and told me she heard a mighty riding and 
walking, and said I had betler get up, she thought it was Ku Klux. I 
jumped up, and put on ray pantaloons, and stepped to the door, and 
looked out, and very close to the door I seen the men, and I stepped right 
back into the house ; so when they knocked the door open they couldn't 
see me ; and they came in and called for me to give up my gun, and I 
says I has no gun; and when I spoke they all grabbed me, and taken me 
out into the yard. 

Q. What sort of looking people were they ? 



Zoo 

A. They was all disguised ; as far as I could see— they was all disguised, 
and struck me three licks over the head, and jobbed the blood out of me, 
right forninst my eye, with a pistol, and down by my mouth here, [indi- 
cating ;] and four of them walked around to Mr. Moore's ; and, -when they 
started olT, one touched the other, and said let's go around, and see this 
man, and then the crowd that had me taken me to Mr. Moore's, and 
asked Mr. Moore if I had a gun ; and he said no, not that he knew of; 
and they asked if I had a pistol, and he said no ; they asked if I belonged 
to that company ; he said no. 

Q. What company ? 

A. Jim Williams' company ; asked him was I a bad boy, and run 
about into any devilment; he said no; I was a veiy fine boy, as far 
as he knew ; they asked how I voted ; he said I voted the Radical 
ticket ; they says, " There, G — d d — n you, I'll kill you for that ;" 
they took me on out in the laue, and says, " come out and talk to No. 
6 ;" they locked arms with me, and ont took me by the collar, and 
put a gun agin me, and marched me out to No. 6; when I went out 
there, he was sitting on his horse ; I walked up to him ; he bowed his 
head down to me, (illustrating with a very low bow,) and says, " How 
do you do," and horned me in the breast vrilh his horns ; had horns on 
the head about so long, (indicating about two feet ;) I jumped back 
from him, and they punched me, and said "Stand up to him, G — d 
d — n you, and talk to him ;" I told them I would do so ; he told me that 
he vranted me to tell him Avho had guns. 

(^. Who said that ? 

A. No. 6 ; I told hira I knew a heap that had guns, but hadn't them 
now ; they had done give them up ; well, says he, ain't Jim Williams got 
the guns ? I says I heard folks say that he has them, but I do not kuow 
whether he has them or not. Then he says to me : " We want you to 
to gf) and sho\y us the way to Jim Williams' house." Says" I, " I have 
never been there since he built on that road." Says they, " We want you 
to go and show us to where his house is ; if you don't show us to where 
his house is we will kill you ; " and then one looked up to the moon and 
says ; " Don't tarry here too long with this d — n nigger ; we have to get 
back to hell before daybreak. It won't do to tarry here too long." Says 
he. "get on." There Avas a man standing to the right of me with his 
beast ; his head was turned from me ; I stepped around and got on be- 
hind him, and rode on around until they turned towards the school house, 
about sixty yards down the road, and he asked me did I want to go, and 
I told him no. Says I, the fix that I am in, if you don't do anything to 
me, may kill me. I hadn't nothing on but a shirt, pantaloons and 
drawers. They started in a lope then, and he hollowed to No. 6 that he 
Could not keep up, that I was too heavy. Says he, " this God damned nig- 



234 

ger is too heavy." No. 6 liollow/? biick to him, " let hira dowii," and he 
rode close enough to tlie ^feuce so that I could get down, and I stepped 
off"; says he, " you go home and go to bed, and if you are not there when 
Ave come along, we will kill you the next time we call on you ; we are 
going on to kill Williams, and are going to kill all these damned niggers 
that votes the Radical ticket ; run, God damn you, run." I ran into the 
yard, and I heard somebody talking near the store, and I slipped up be- 
side the palings, and it was Dr. L )ve and Andy Lindsey talking, and 
Love seen me, and says, " Gadsden, did they hurt you ; " " no," says I, 
" not much ; they punched the blood out in two j^laces, and knocked me 
two or three times about the head, but they ditl not hurt me very much." 
Says he, "you go to bed and I don't think they will trouble you very 
much." I went home and put on my clothes, and goes up to the mill to 
get the other boys out of the way, for fear they might go on them, but 
they were out, and the others were lying in bed, and I waked the others 
up, and we all went out into tl*e old field and laid there until the chickens 
crowed for day, and went back to Mr. Moore's, near the house, and lay 
there till clear day-light, and I goes into the yard there, and Mr. Moore 
came to me and looked over my face and seen where they had punched 
the blood out of me, and says then for me to go on to my work and make 
myself easy, that they should not come and bother me any more ; I never 
seen any more of them after that. 

Q,. Now, what time the next day did you learn that Jim Williams was 
dead? 

A. It was about 8 o'clock when I hoard of it. 

Q,. Did you go down near him ? 

A. No, sir; I didn't go. I was busy employed, and didn't go. I didn't 
quit my work to go. I was working at the mill, and some come there to 
the mill very early that morning and tSld it. 

Q. Told you what ? 

A. Well, they didn't tell me, but they told Mr. Dover and Mr. Guthrie 
that he was killed. 

Q. Who? 

A. I don't know who it was that said it was Jim Williams. They said 
he was killed, but the man that said it I didn't know. They w^as whit^ 
men. 

Q. Jim Williams was killed that night, was he? 

A. Yes, sir ; he was killed that night. 

Q. Repeat, if you please, what that man told you when he let you go 
off from the horse ; what they said to you ? 

A. Wh'en they let me off the horse, they said : " You go home and go 
to bed, and if you are not there in the morning when we come along) 
the next time wc call, we will kill you. We are going to kill all you 



235 

d — 11 niggers that vote these Radical tickets. We are going to kill Jim, 
and are going to kill all the.-!e d — n niggers that vote the Radical ticket." 
The man that I was riding behind, he was the one that talked to me. 

Cross-examination by Mr. Stanhery. 

Q. When they came to your house they inquired about your guu ? 

A. Yes, sir. ^ 

Q. You told them you had no gun ? 

A. Yes, sir. 

Q. Plad you belonged to the company before ? 

A. No, sir; I had not belonged to the company; I worked on the rail- 
road and had no time. 

Q. This man then wanted you to tell them where Jim Williams lived, 
and wanted you to go as- a guide ? 

A. They wanted me to tell them who had the guns before they asked 
me where Williams was, and then after I told them that I knew who had 
guns, but didn't have them now, they wanted me to direct them the way 
to Williams' house ; I told them that I heard that Williams had guns, 
bufl could not swear that he did have them. 

Q. Was that before they asked for Williams' house or afterwards ? 

A. I told them afterwards. 

Q,. What did they ask you ? 

A. They asked me did he have the guns ; I told them I didn't know, 
I heard folks say so, and then they wanted fiie to go with them. 

Q. How far did he live from you ? 

A. About three miles. 

Q. On a main road ? 
. A. Well, it was across the country, between two roads. 

Q,. Did he live on a road? 

A. I does not know whether he lived on the side of the road or not. 

Q. You hear anybody speak about voting except this man that had 
you on his horse? 

A. That had me behind him ; he spoke to me about it after he let me 
down. 

Q. His horse didn't keep up ? 

A. No, sir ; he said I was too heav}'^'; these two was the hindmost men. 

Q. What? 

A. The man that I was riding behind, and the one that was beside 
him. 

Q,. And the man you vras riding behind made this remark to you ? 

A. Yes, sir ; and then they both told me to run. 



236 
Re-direct Examination hj Mr. Corhin. 

Q. Did I understand you to say that jN"o. 6 asked about your voting ; 
who was it asked you at Mr. Moore's? 

A. They asked Mr. Moore what ticket I voted, and ]Mr. Moore told 
them he would not lie for me, that I voted the Kadical ticket ; and, says 
he, that man what was there, says, "There, God damn you, we will kill 
you for that." That V\'as for voting the Radical ticket ; and then says to 
me, " Come out and talk to No. G;" and when I went out to talk to No. 
6, he asked me who had the guns; I said I know a heap that have had 
them, but haven't them now. 

Q. The conversation was altogether about the guns, and not about 
voting ? 

A. Yes, sir; he asked about the guns and about Williams. 

TESTIMONY OF MRS. ROSY WILLIAMS. 

Mrs. Rosy Williams, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corhin. 

Q. Are you the wife of Jim Williams ? 

A. Yes, sir. 

Q. Wiiere do you live ? Where did you live when Jim Williams was 
living? 

A. On Bratton's place. 

Q. In what County ? York County ? 

A. Yes, sir. 

Q. When was Jim Williams killed — your husband ? 

A. The 7th of March. 

Q,. Tell the Court and jury all about it — all you know about it? 

A. They came to ray house about 2 o'cloclc in the night ; came in the 
house and called hira. 

Q,. Who came? 

A. Disguised men. I can't tell who it was. I don't know any of 
them. 

Q. What do you call them ? 

A. I call them Ku Klux. 

Q. How many came ? 

A. I don't know how many there was. 

Q. How many do you think ? 

A. I reckon about nine or ten came into the house, as nigh as I can 
guess it ? 

Q. What did they do ? 



A. He went under the honse before they cnme, find after they came in 
lie came up in the house and gave them the guns. There were but two iu 
the house, and then they asked him for the others, and cussed, and tokl 
him to come out. He tokl thejn he had never had any of the guns. He 
went with them, and after they had took him out doors they came in tlie 
house after rae, and said there were some guns hid. I tohi them there 
was not, and after I told them that they went out, and after they had 
went out there, I hea«l him make a fuss like he was strangling. 
Q. Who? 

A. Williams. Then I went to the door and pulled the door open, and 
allowed to go down and beg them not to hurt him. They told me not to 
go out there. Well, I didn't go out. Then they told me to shut the 
door, and take my children and go to bed. I shut the door, but didn't 
go to bed. I looked out of the crack after them until they got under 
the shadows of the trees. I couldn't see them then. 

Q. Did they take Jim Williams ? 

A. Yes, sir ; but I couldn't tell him from the rest. 

Q,. Was that the last time you ever saw him alive? 

A. Yes, sir. 

Q. Or did you see him again ? 

A. No, sir. The next morning I went and looked for him, but I 
didn't find him. I was scared too. Then I went for niy people, to get 
some one to go help rae look for him ; and I met an old man who told 
me they had found him, and said he was dead. They had hung him ; 
but I didn't go out there until 12. o'clock. 

Q. Did you go out there then? Did you see him ? 

A, Yes, sir. 

Q. What was his condition ? 

A. He was hung on a pine tree. 

Q. With a rope around his neck ? 

A. Yes, sir, 

Q. Dead? 

A. Yes, sir ; he was dead. 

Cross-Examinatio7i by Mr. Stanhery. 

Q. Do you say when they came in did they ask you for the guns 
before your husband came ? 

A. No, sir ; asked where he was at first ; they asked me aliout that 
after they took him out there. 

Q. When he came iu, they asked him for what guns he had? 

A. Yes, sir. 

Q. Very well ; and did he produce the guns ? 



238 

A. Yes, sir ; he gave tliem to him. 

Q. Two guns ? 

A. Yes, sir. 

Q. And accoutrements ? ^ 

A. There was nothing else there except one bayonet, and they got 
that. 

Q. And did they take him out at that time ? 

A. Yes, sir. 

Q. How long after that was it that they came in to look further about 
them ? 

A. Well, it was not long. 

Q. "What did they ask you then ? 

A. They told me to get the guns, there was more there. 

Q. What did you tell them ? 

A. I told them there was not any but what they had got. 

Q,. Then they asked about the pistol ? 

A. Yes, sir ; I told them we didn't have any ; we had borrowed one, 
but we carried that back home. 

Q. How many were in the house at the time they went in ? 

A. Nobody but Dave Black, that night. 

Q. I want to know of these men in diguise ; how many came in ? 

A. About six or seven, I reckon, came in the house. 

Q. The first time or the second ? 

A. Did not more than three or four the last time. 

Q. Not so many the last time as the first time ? 

A. No, sir ; I cannot tell how many there was, because I was scared, 
because I thought they was going to kill me too. 

Q. You did not knoAV who they were? Did you know that your hus- 
band was captain of that company ? 

A. Yes, sir. 

Q. Did you know of his going down to Chester for anything ? How 
far is that from where you live? 

A. Some ten or eleven miles, I reckon. 

Q. Don't know what he went down there for? 

A. He went down there one Sunday to see about getting these guns. 

Q. Who did he go to see? 

A. ]Mr. Rice, I believe. 

Q. Were you at home when he came back ? 

A. Yes, sir. 

Q. What did he bring back from Chester? Does Rice keep a store 
there ? 

A. I don't know. I don't know him. 



239 

Q,. Do you know whether Rice has anything to do with those colored 
companies? 

A. I don'i know; can't tell you anything about them. 

Q. Do you know, whether or not, that Rice keeps any ammunition ? 

A. I don't know, sir ; don't know anything about them there. 

Q. Did you never see any of the ammunition ? 

A. Yes, sir. 

Q. Where did you see it ? 

A. Jim had some. 

Q. Where did Williams get it? 

A. He got it at York ? 

Q. Who from? 

A. I don't know. 

Q. How do you know lie got it at York ? 

A. He said so. 

Q. Did he bring home any ? 

A. Brought it home in a little paper Dox. 

Q. What was in the box ? 

A. Minnie balls, they call them. 

Q. What number? Were those just separate bullets? 

A. They had some nine or ten ; just a little small box. 

Q. Nine or ten minnie balls, as they called them ? 

A. Yes, sir. 

Mr. Corbin. She didn't see them; I don't see the relevancy in all 
this. 

Mr. Stanbery. You don't see the relevancy of anything Ave ask. 

Mr. Corbin. I think it would trouble you to see it. 

Q. Was that the only ammunition you have seen him bring to your 
house ? 

A. Yes, sir ; that was all he brought there. 

Q. '\Vhat did he do with that which he did bring ? 

A. Gave them out to his men in his company. 

Q. Do you say he gave them to his men ? 

A. Some came there and got them. 

Q. How many did he give to them ? 

A. Gave them all two a piece there. 

Q. Did he give them any powder at the same time ? 

A. Never had no powder. 

Q. Nothing but balls ? 

A. Yes, sir. 

Q. Were those balls in what they calk cartridges, or were thev just 
balls? 

A. Called them cartridge balls ; they had caps on them. 



240 

Q. You say Ii8 gave two of these to eac!i man of the company? 

A. Yes, sir. 

Q,. Was it just two, or did he give any more thau two ? 

A. He gave more, but gave them where they mustered at. 

Q. How long before he was hung was it that he gave these balls out ? 

A. When they first got them ; a long time. 

Q. How often did he muster about that time? 

A. When they did muster, mustered sometimes every two weeks, and 
sometimes eveiy three weeks. 

Q. Where was the place they mustered ? 

A. I cannot tell exactly the place, because I "was never up there when 
the}' was mustered. 

Ee-Dlrect Examination, 

Q,. How long before the election — do you remember — did he give those 
cartridges, or how long after he got the gun did he get the cartridges? 
A. I don't know exactly how long. 
Q. Was it a long time? 
A. It was a good while. 
Q. Long time before the election ? 

A. A good Vidiile; I cannot tell you how long, because I don't know. 
Q. Did he give an}' cartridges after they had stopped mustering ? 
A. No, sir. 

Q. When did they stof mustering 1 
A. Good while before Christmas. 

lie- Cross Examination. \ 

Q. Did you ever hear Williams say that he had been ordered to return 
those guns ? 

A. Yes, sir ; heard him say they wanted him to give them up, but he 
said he didn't allow to do it. 

Q. Who did he say ordered him to return the guns ? 

A. He didn't say. They had a meeting up the road somewhere, one 
day, and they went up there. 

Q. And when he came home he said he was ordered to turn over the 
guns ? 

A. Yes, sir ; and he didn't allow to do it, without Governor Scott gave 
the orders. 

Q. Did he say who had given him orders ? 

A, I don't know the man. 

Q. Would you know the name ? / 

Mr. Corbin. We think, if it please the Court, that if this is material 
at all, they must prove it in a proper way. 



241 

Mr. Staubery. Tliat is the pro})er way to do it. 

Mr. Corbia. No, sir ; that is all hear say; every word of it. 

The witness was discharged, and the Court, at 10:30 P. M., adjourned. 



Columbia, December 13, 1871. 

TESTIMONY OF HIRAM LITTLEJOHX. 

Hiram Llttlejohn, a w'itness for the prosecution, being duly sworn, tes- 
tified as folloAVS : 

Direct Examination hy Mr. Corhin. 

Q,. Where do you live ? 

A. Yorkville Creek. 

Q. Where did you live last spring ? 

A. I lived in the same District, between York and Chester roads. 

Q. State whether the Ku Klux came to see you, and what time, what 
they said, and what they did ? 

Mr. Johnson. We object. It has not been ghoy>-n that the defendant 
has been in any way connected with the conspiracy. 

The Court. You have first to show that there has been a conspiracy, 
before you can show that anybody was connected with it. 

Mr. Stanbery. We made no objection while they were attempting to 
show a conspiracy ; but now they are attempting to show acts done in a 
conspiracy before showing that the defendant participated in those acts. 

The Court. His connection will be shown in the progress of the trial. 

Mr. Stanbery. That may keep us here forever, without getting to our 
client at all ; t)iey cannot go into these overt acts to which we are not 
parties. 

The Court. That has to be proved. 

Mr. Johnson. Can they go into the acts of other parties before we have 
been proved to be one of the conspirators ? 

The Court. They are seeking to establish the conspiracy by the acts of 
these parties in disguise. 

Mr. Johnson. I wish to bring before the Court, what I believe to be the 
law. Before a party can be charged at all, with any acts alleging con- 
spiracy, it must be proved that .he was one of the conspirators. You 
might as well go into the evidence of any other conspiracy. I undei'- 
stand they have a long list of a thousand or more conspirators, and it is 
not for us to say here, while they prove what " A," " B " and " C " said, 
in order to affect our client, in the absence of any positive proof, that he 
16 



242 

kuew anything of ihe conspiracy. It is calculated to influeuce the jury, 
and must influence the jury more or less. What they offer has nothing 
to do with the conspiracy, till they have offered evidence to show that we 
are one of the parties. The rule is, that before any evidence can be 
given of the acts or declarations of any supposed conspirator in a con- 
spiracy, in order to affect the party under trial, it must be proved that he 
is one of the band of conspirators. 

Mr. Corbin. The counsel has occupied the time of the Court in argu- 
ing a (juestion that I supposed was among the first principles of evidence, 
and known to everybody. I beg to call the attention of the Court to 2 
Russell, p. 700, to show that we are entitled to the evidence asked for. 
[Mr. Corbin here read the passage referred to.] 

Mr. Stanbery. I understand the rule to be, that you can begin at either 
end, so that it be to establish the conspiracy and involve the defendant in 
it. And it is generally done under the assurance that he will connect the 
defendant with it ; but with or without that assertion on the part of the 
prosecutor, I admit that he can begin by proving a conspiracy. After- 
wards, when he has proved the conspiracy — made it out as he claims to 
have done — yet not having implicated the defendant, or shown him present 
or agreeing to the cons})iracy — they now attempt to go into all that 
was done by the conspirators, that are proved to have been engaged in it. 
All their raids are to be gone into, and, as yet, they do not bring the defend- 
ant into tliera at all, or show that he was one of the leaders, or that he 
knew anything about the raid. The prosecuting attorney must connect 
him vv'ith the conspiracy outside of the independent acts of these parties 
or their declarations. 

The Court. We think the evidence asked for strictly permissible. 

Q,. State whether the parties in disguise, called Ku Klux, came to 
visit you last March ; what they said, and what they did ? 

A. They came in and stood about the door; then opened the door. 

Q. Who came in ? 

A. I don't know who they were ; they were in disguise. Two came in. 

Q. How did they look? 

A. I do not know how they looked ; they were pretty much white. 

Q. What kind of disguises had they on ? 

A. They were white all over, and had horns about their ears. 

Q. What did they say to you? 

A. When they came up, they said : " Have you any guns here ?" Said 
I : " We have got a double-barrel shot gun." " Hand it down here," 
said they; "we have hung Jim Williams to night; Ave intend to rule 
this country or die." Said he: "You area Radical man. Next time you 
go to vote, you vote the Democratic ticket, you hear." 

Q. Did they leave you then? 



243 

A. They went off witli the guu. 

Q. What time in the night was that? 

A. It was before daylight — but I don't know the time. \ 

Q. Did they take your gun ? 

4. Yes, sir ; they did. 

Q. Did you hear that Jim Williams had been killed ? 

A. I only heard from what they said. 

Q. Did you hear next day that Jim Williams had been killed ? 

A. Oh, yes, sir ! Of course I heard it next day. 

Q. Do you know the fact that he had been killed ? 

A. Only from what I heard ; I heard several say so ; I heard ray 

folks talking about it. 

Q,. When w^as this ? Was it some time in March ? 

A. I do not know. 

Q. Do you know what time sale day is ? 

A. It is generally the first Monday in March. 

Q. Do you know if it was that night? 

A. No, sir ; I did not pay any attention to what day of the month it 
was. 

Q,. Did you see Andy Tims ? 

A. Yes, sir ; he came down — he and Pete Bratton. 

Q. Where were they going ! 

A. He came and inquired if the Ku Klux had been there. 

Q. Where did the Ku Klux go ? Which direction did they take 
when they left you that night ? 

A. They went up toward York. 

Q. Which direction did they come from ? 

A. They came from the direction where they had hung Jim Wil- 
liams. 

Cross-examination waived. 

TESTIMONY OF JOHN CALDWELL. 

John Caldwell, a witness for the prosecution, being duly sworn, testi- 
fied as follows : 

Direct Examination hy Mr. Corhin. 

Q. What is your name ? 

A. John Caldwell. 

Mr. Johnson objected to the w^itnesses testimony, in consequence of 
his having been present in Court yesterday, contrary to the orders of the 
Court. 

Mr. Corbin explained that he was a prisoner in the custody of the 
Marshal, and was ignorant of the order of the Court. 



244 

The Court allowed his testimony to be received, 
Q. How long have you resided in York County ? 
A. Twenty-seven years. I was born and raised there. 
Q. How old are you? 
A. About twenty-seven years. 

Q. In what portion of York County do you reside ? 
A. In the -western portion. 

Q. Have you ever been a member of the Ku Klux organization in 
York County ? 

A. Yes, sir ; I have. 
Q. When did you join the order? 
A. In 1868. 
Q. Where was that ? 
A. AtYorkville. 
Q. Who initiated you ? 
A. Major J. ^^'^. Avery. 

Q,. What was his relation to the order at that time ? 
A. He just came to me and asked me to walk up to his store. He 
took me into a room, and said he wanted me to join an order. I asked 
him what he was getting it up for. He said it was in self-defense. 

Q. Were you initiated by him then? Did he administer the oath? 
Can you tell- us about what that oath was? 

A. I cannot remember. 

Q. Can you tell us the substance of it ? 

A. Only the last portion of it. 

Q. What was that ? 

A. I understood that any person who divulged the secrets of the or- 
ganization should " suffer death, death, death." 

Q. Do you think you would recognize the oath were you to hear it 
again ? 

A. No, sir ; only that portion of it. 

Q. Who was JMajor Avery ? 

A. He is a citizen of Yorkville. 

Q. What was his office in the order ? 

A. At that time, I do not know. 

Q. Did you know at any time since ? 

A. Yes, sir ; I knew he was the chief of that County. 

Q. How do you know it ? 

A. I was present when he was appointed. 

Q. Where was he appointed, and when ? 

A. It was some length of time after I was taken into the order. 

Q. Was that before or after the election of the full of 1868? 

A. He was made chief after the election. 



245 

Q. Where was that election held at which he was made chief? 

A.- lu Bratton & Mason's store — up in the third story. 

Q. How many of the order were present ? 

A. There were a good many ; I do not know how many. 

Q. Do you know the defendant, now present, Robert Hayes Mitchell ? 

A. Yes, sir. 

Q. Is he a member of the Ku Ivlux organization ? 

A. Yes, sir; I suppose he is; I don't know; I never saw him ini- 
tiated. 

Q. Have you recognized him as a member of the order ? 

A. Yes, sir; I have. 

Q. Where -was that ? 

A. Along the road when we were on our way to Jim Williams'. 

Q. Did you see him with the party that night ? 

A. Yes, sir. 

Q. Where did you first see him ? 

A. About four miles from York, on the Piuckney Road. 

Q. Did you have any conversation with him ? 

A. I had no conversation Avith him at all — I just saw him. 

Q. Pid you speak with him ? 

A. No, sir ; I don't think I did. 
• Q. Which ^Vay was he going? 

A. He was on the road then ; there were some six or seven men in 
the party that I met on the road. 

Q. Was he with the crowd ? 

A. Yes, sir. 

Q. Commence at the beginning and describe the raid on Jim Wil- 
liams ; Vv'hen you got the order to go ; where you went to muster; who 
took command of the men ; and what road you traveled ; what you did 
when you got to Jim Williams' house, and all about the matter? 

A. The first I heard of it, w:as at Yorkville ; I was told there, by Dr. 
Bratton, that they Avere going down to McConnellsville ; I asked him 
what he was going after ; he said he was going for some guns ; he asked 
me if I would go, and I said I would have nothing to do with it ; I had 
never been on a raid ; he asked me. the name of the chief man in our 
County ; I told him I understood it was Wm. Johnson or Alonzo Brown, 
was the leading man in our County. 

Q. Do you mean in your portion of the County ? • 

A. Yes, sir. 

Q. Go on and tell all you know ? 

A. Johnson came to me, and told me to meet him at the muster patch. 
That was Wm. Johnson. 

Q. What is his relation to the order? 



246 

A. He was chief. 

Q. Of what Klan ? 

A. Of the Rattlesnake Klan. I went out to the muster ground that 
night ; it is called the " Briar Patch ;" I met several men there ; I do 
not know that I could call them over ; I have a memorandum of 
them here, written down. 

Mr. Johnson. When was that memorandum made? 

A. It was made since I came down here. 

Mr. Johnson. That won't do. 

Mr. Corbin. Did you make that memorandum yourself? 

A. Yes, sir. I made oue ; I did not make this. 

Q. Is not that the memorandum of the names you gave ? 

A. Yes, sir ; except the name of one man. 

Mr. Johnson. We object to the testimony. What is that list? 
• A. I made the list of the names myself, and this is the copy of it. 

The Court. You may name them from your recollection. 

A. I met Wm. Johnson and Harvey Gunning, Chambers Brown, Hol- 
brook Good, James Neill, Sam Ferguson, Richard Caldwell, Piuckney 
Caldwell. I don't remember the others, but there were more men than 
these there. 

Q. Was that the crowd you found at the " Briar Patch ?" Did others 
come there? 

A. Dr. Bratton came there, and Lindsay Brown, and Rufus Mc- 
Lain. 

Q. Did you know any of the others ? 

A. No, sir. There were some men there, but I don't remember them. 

Q. Did any more come to that place after that ? 

A. Not at that place. 

Q. Who took command of the crowd ? 

A. Johnson was chief of that party when we started from the " Briar 
Patch." 

Q. Tell us where you went, and who you met on the road ? 

A. We went across the Pinckney Road, about three miles. 

Q. Did you put on your disguise at the " Briar Patch ?" 

A. Yes, sir. 

Q. What sort of disguises are they ? 

A. IMost of them wore black gowns, with heads an^, false faces. 

Q. What soft of heads were they ? 

A. They were made out of black cloth, or dark cloth. 

Q. How were they ornamented ? 

A. Some had horns, and some had not. 

Q. Had you horses there ? 

A. Yes, sir. 



247 

Q. Were the men armed ? 

A. No, sir, I don't believe I saw a guu in the party. 

Q. Had they pistols ? 

A. I didn't see any pistols. 

Q. Now, tell us where they went? 

A. We went down to the Pinckney Road, and there we met another 
13arty of men. 

Q. How far was it before you crossed the Pinckney Road? 

A. About three and a half miles above Squire A. S. Wallace's, the 
ndember of Congress. 

Q. Who did you meet there ? 

A. We met the four Shearer t)oys, Robert Hayes Mitchell (this man 
here) and Elias Ramsay. I don't remember any more, but there were 
more men there. 

Q. What did they do there ? 

A. We stopped then, and there were four men initiated there. 

Q. Who were they ? 

A. They were the four Shearer boys. 

Q. Can you give their names ? 

A. James, William, Sylvanus and Hugh Shearer. 

Q. Who swore them ? 

A. I don't know. 

Q. After they were initiated, what was done? 

A. We started in the direction of MeConnellsville. 

Q,. Who was in command of ths party? 

A. Bratton was at the head of the party; he was riding in front. 

Q. What Bratton was that ? 

A. Dr. J. Rufus Bratton, of Yorkville. 

Q. Go on with what you had to say ? 

A. We went on then to MeConnellsville, and about two hundred or 
three hundred yards from there we halted ; and they said there were 
some guns down at that place, and they sent a party to search and get 
them. A man then came from the party that went forward, and said 
bring up the horses ; and they took them down. They said there was a 
gun at Mr. Moore's, and they went up there for a black man, but I don't 
know who he was. 

Q,. At whose place was this? 

A. They said it was Mr. Moore's place. 

Q. What did they do with the black man ? 

A. They asked him about Jim Williams ; how far away he lived. 
They ask^d him. if he knew if Williams had any guns. He said he 
thought there were twelve or fifteen guns there. Then they took this 
black man and mounted him on a horse or mule and carried him a piece, 



248 

then tliey halted and turned the black man loose, and he went back 
home. Then they went on from there about three miles, and stopped in 
a thicket, and a party of ten went off — I don't know wliether there were 
more than ten — and were gone probably an hour. 

Q. Can you describe the place ? 

A. It was in an old piney thicket on the side of a hill. 

Q. What did you do ? 

A. I remained there with the horses. I was not well, and I just re- 
mained there with the horses. 

Q. Did the pai-ty go forward ? 

A. Yes, sir ; before I got ofi' my horse, I heard some one call for ten 
men, and that party then went ofi'. 1 ^w them go off, and they Avere 
gone probably one hour, when they returned. 

Q. Did you hear anything of them while they were gone ? 

A. Not a word. 

Q. Did the same crowd return ? 

A. Yes, sir. 

Q. What was said by any of them as to what they had done ? 

A. I asked if they had found the black man, Jim Williams, and if 
they saw him. I got no answer, and they just got on their horses to 
leave. 

Q,. Who ordered them ? 

A. I heard some man say, " Mount your horses," and then they 
mounted and took across over the fence, and I got up forward to the 
foremost man, Dr. Bratton. I asked him if he had found the negro; he 
said " Yes." Said I : " Where, where is he?" Said he : " He is in hell, 
I expect." 

Q. What further was said ? 

A. I asked him : "You didu't kill him?" ^e said : " We hung him." 
I said : " Dr. Bratton, you ought not to have done that." He then 
pulled out his watch, and said : " We have no time to spare ; we have 
to call on one or two more." 

Q. Where did you go then? 

A. I went down to the bridge and crossed it, and fell into the Brattons- 
ville Road. I went, I reckon, a half or three-quarters of a mile. There 
Avas a gun at^ this house. They stopped and went in, but I don't know 
Avhcther they touched the gun or not. We went up the road till Ave got 
beyond Brattonsville, and after passing it about three hundred yards, or 
may be more, one party Avent one road, and fifteen or tAventy went an- 
other road. 

Q. In Avhat general direction Avere they going ? 

A. In the direction of Yorkville. 

Q. HoAV far Avere you theu from Yorkville ? 



249 

A. I don't know ; but I understand that it was about tea miles from 
Brattonsville. 

Q. What time in the night was it when the parties separated ? 

A. It was about three o'clock. 

Q. What time was it when Jim Williams must have been hung? 

A. I don't know ; but I think it must have been about two o'clock. 

Q. Which party did you go w^ith from this j)lace ? 

A. I went on the right hand side, and took the right hand road. 

Q. Did you go to Yorkville ? 

A. No, sir. 

Q. Which side of Yorkville did you go home ? 

A. On the left hand side. I went directly to my home. I left York- 
ville on my right. 

Q. Tell u-s what occurred on your way home ? 

A. Nothing occurred after we left that place. We just went straight — 
as fast as Ave could — right for home. 

Q. What portion of this crowd lived in Yorkville ? 

A. There were two men there — Dr. Bratton and Kufus McClain. 

Q. After you left the place where you hitched your horses when Jim 
Williaras'was hnng, what was said by Dr. Bratton about refreshments ? 

A. Nothing was said there ; but Dr. Bratton told me I needn't be 
afraid of getting hungry ; that he would get something to eat for us ; 
but he did not tell us where. 

Q. Did you get refreshments that night? 

A. Yes, sir. 

Q. AVhere did you get them ? 

A. Some distance from Brattonsville. We fell in with a crowd some 
distance above Brattonsville, and with this party we had something to 
eat. Crackers, cheese, and, I think, two bottles of whiskey. 

Q. Did you get any ham ? 

A. If so, I did not get any. 

Q. Can you tell exactly where that was? 

A. I could not. It was .some distance from Brattonsville. I never 
was on the road before in my life. 

Q. Then, after the two parties separated, you went home ? 

A. Yes, sir. 

Cross-Examinalioii by Mr. Johnson. 

Q. Kow long had you known the prisoner before that time ? 

A. I had known him a good while. 

Q. Did you know him very well ? 

A. Yes, sir ; I was in the war with him. ' 

Q. Did you ever see him on any raid except this one? 



250 

A. No, sir ; I never did. 

Q. Did you ever see him at any meeting of the order ? 

A. No, sir. 

Q. When you saw him at the place where he joined you, had he any 
disguise on ? 

A. No, sir. 

Q,. Were the rest disguised ? 

A. A good many were not disguised. Mostly the men who met us on 
the Pinckney road were not disguised. 

Q. Was he one of the ten that were detailed to guard the house of 
the negro man ? 

A. No, sir ; he was not one of the men that went. 

Q He was not ? 

A. No, sir. 

Q. Where was he ? 

A. He was with the horses with me. 

Q. When did you say you were initiated? 

A. 1868. 

Q. In Yorkville? 

A. Yes, sir. 

Q. Who made the application to you to become one of the party ? 

A. Major Avery. 

Q. What did he tell you was the object of it? 

A. He said this thing was intended for self-defense. 

Q. How long were you present in the room when you were 
initiated ? 

A. Just for a -short time ; not over five minutes. 

Q. Was anything said by Avery, in anybody's hearing, that the ob- 
ject was to prevent the blacks from voting? 

A. No, sir ; I never heard of it. 

Q. What did you understand from them was their object in going to 
the house of this colored man ? 

A. To know if they had any arms ; that was my understanding ; and 
they had been told by the negro man that thfere were from eleven to fif- 
teen arms there. 

Q. Ho said there were twelve to fifteen guns there. Then, as far as 
you know, their purpose was to get these guns ? 

A. Yes, sir. 

Q. Were you, during that night, or after they went to the house of the 
poor negro, or when j'^ou returned home, were you told that the object of 
the society was to prevent their voting? 

A. I didn't liear anything of that said. 

Q. Wliere did you live at that time ? 

A. Within five miles of Yorkville. 



251 

Q. What did you understand from Mr. Avery's speech were the mat- 
ters from which they desired to protect themselves? Had anything 
occurred ? 

A. No, sir ; nothing had occurred at that time. 

Q. Any fires ? 

A. Not when I was initiated. 

Q. Did you hear at that time of any threats having been made ? 

A. No, sir ; not at that time. 

Q. When did you hear, if at all, that threats were made? 

Question objected to, and withdrawn. 

Q. Did you hear that threats of violence were made before you went 
on that raid you speak of? 

A. Yes, sir; I did. 

Q. What were the threats you heard that had been made? 

A. I heard this black man, Jim Williams, was formerly in a Ku Klux 
party, down there, and that he intended to Ku Klux the white people of 
that Couuty. 

Q. Was his threat of Ku Kluxiug confined to the white men, from 
what you heard ? 

A. Yes, sir. 

Q. Was anything said about white women ? 

A. No, sir. 

Q. Was anything said about children ? 

A. No, sir ; but I heard such things. 

Q. Who did you hear it from ^ 

A. Well, I heard reports of that kind — that this man said he in- 
tended to kill from the cradle to the grave. 

Q. How many places do you say you were at that night you visited 
Jim Williams ? 

A. We stopped at two other places. 

Q. Did they belong to colored people ? 

A. Yes, sir ; we stopped at McConnellsville, and went for a black 
man there; and we went from there to Dr. Love's, and halted there, and 
called for a black man. 

Q,: Was anything said upon either of those occasions about their not 
being permitted to vote ? 

A. I never heard anything. 

Q. Then, if I understand j^ou, from the time you Avere initiated up to 
the time of the raid, you never heard that the object of the association 
was to prevent the colored people from voting ? 

A. No, sir ; and I never was at a meeting except that one. 

Q. You say you did not recollect any conflagrations or fire^ at the 
time you were initiated ? 



252 

A. No, sir ; I did not. 

Q. Were there fires afterwards ? 

A. Yes, sir ; there were some fires afterwards. 

Q. Whereabouts were they ? how far from Yorkville ? 

A. They were pretty much in all directions from Yorkville. 

Q. What kind of houses were burned ? 

A. Mostl}^ giuhouses. 

Q. Were many burned? 

A. Yes, sir; several giuhouses were burned. 

Q. Who were the owners of these honses? 

A. Dr. Addison had a ginhouse burned that was run by water, and 
widow Thomas and Dr. Lowry had a ginhouse burned, and Mr. Warren 
had another burned. 

Q. Were they white people ? 

A. Yes, sir. 

Q. Was the house of Mrs. Ray burned ? Was the house of Mrs. Al- 
cross burned ? 

A. Yes, sir ; I heard about that. 

Q. Was the house of Mr. Thomas burned ? 

A. I do not know. 

Q. Was the house of Mr. Jacob Smith burned ? 

A. He had a barn burned. 

Q. What time were those burnings ? 

A. It was in January, I think, of this year, some of the burnings ; 
Dr. Addison's, I think, was the first of January. Some burnings were, 
I think, in October, 1870. 

Q. The rest you think were in January, 1871 ? 

A. Yes, sir; about that time. 

Q. Was there a good deal of alarm in the neighborhood on account 
of these fires ? 

A. Yes, sir ; there was a great deal of alarm. 

Q. Did you ever hear of a threat to burxi down the town of York- 
ville ? 

A. Yes, sir. 

Q. From whom did you understand that threat came ? 

A. There was a man from Yorkville came into our County ; he said 
there had been a difficulty, on Sunday night, at Yorkville. This was 
on Monday, that Re came, and the negroes said they intended to burn 
down Yorkville on Monday night; he wanted us to turn out and help 
defend the place. 

Q. What night was that ? 

A. I do not recollect. 

Q. Was that before you went upon that raid ? 



253 

A. Yes, sir ; it was before. 

Q. Do you recollect the month ? 

A. ]S"o, sir. 

Q. Was it in a winter month ? 

A. Yes, sir ; it was in a winter month. 

Q. Can you tell whether it was December, January or February ? 

A. I think it was in January, 1871. 

Be-Direct Examination by Mr. Corhin. 

Did you ever hear any negroes make such threats as those you have 
been speaking about ? 

A. No, sir ; I never heard them. 

Q. Did you ever see a man who did hear them ? 

A. No, sir ; I never saw a man who said he had heard them ; nothing, 
only what Dr. Bratton told me. 

Q. Did Dr. Bratton say that he heard the negroes say it ? 

A. He didn't tell me that he heard the negroes say so. 

Q. All this talk about the negroes burni:ig down Yorkville and kill- 
ing the people at Brattonsville, was all mere rumor ? 

A. Yes, sir ; it was to me. 

Q. You never heard a negro say so yourself, and you never heard a 
white man say that a negro had told him? 

A. No, sir. 

Q. You have spoken about riimors — first, about Dr. Allison's house. 
Did not you hear that he said that a white man burned his place, out of 
revenge ? 

A. No, sir ; I never heard that rumor. I never heard Dr. Allison 
say so ; but I have heard, and believe, that white men did it. 

Q. When did these burnings you speak of occur? 

A. I could not tell exactly ; but it was in January some time — about 
the middle of the month. 

Q.° When did the raids of the Ku Klux, generally, throughout the 
country, commence ? 

A. The first raid I heard of was on Rufus ^Vhite; I think that was in 
October of '70. 

Q. Was this the October previous to the fires ? 

A. Yes, sir; after the raid on White — it was not more than a week 
till Dr. Allison's house was burned. 

Q. What was the next raid you heard of? 

A. I think the nest was the Roundtree raid. 

Q. ^Vhat did they do there ? 

A. I understand they killed him. 



254 

Q. Who ^Yas Rouncltree? 

A. He was a colored mau, who lived in the northeastern part of the 
County. 

Q. When did that occur ? 

A. I don't remember. 

Q. Who is reported to have done it ? 

A. I never did hear. 

Q. Was it done by the Ku Klux? 

A. I suppose it was ; but I knew nothing about that. 

Q. What month was that ? 

A. It was before Christmas — I think last fall. 

Q,. What other raids of Ku Klux did you hear of about that time ? 

A. 1 think th ; next rt^id was on John Ferris. 

Q. When was that ? 

A. I think it was before Christmas. 

Q. What other raids of Ku Klux do you know of? 

A. I don't remember which were next, 

Q. Were there rumors of raids all about the country at that time ? 

A. Yes, sir ; there were. 

Q. State whether the raids of the Ku Klux had not been going on 
weeks and weeks prior to January, when you said those fires occurred ? 

A. I don't remember whether they had or not. 

Q. With the exception of the Allison raid, they had been going on 
before Christmas ? 

A. Yes, sir ; but most of them were done in January and February, 
1871. 

Q. Was that at the time that most of the fires occurred? when was 
that rumor about burning Yorkville ? 

A. That was in February or March. 

Q, Did you ever have any reason to think there was any truth in that 
rumor ? 

A. I do not know ; from what came to me, I concluded there was 
something in it. I did not think a man would leave Yorkville to ask 
me to join, unless there was something in it. 

Q. You had no reason to think there was any truth in it ? 

A. Only from what I heard. 

Q. Did you hear it from anybody who pretended to have heard per- 
sons threaten it. 

A. There Avas a young man who came there to me, who said the 
darkies had met, and that they would burn the place that night. 

Q. Who was it? 

A. Harvy Clawson. 

Q. Howoldishe? 



255 

A. I suppose lie is twenty-two or twenty-three. 

Q. Is he a member of the Khiu ? 

A. Not that I know of. 

Q. Did he not give you any signs ? 

A. No, sir ; not one. 

Q. Did you go to Yorkville that night? 

A. Yes, sir. 

Q. Did you see any signs of burning? 

A. No, sir; there was no attempt to burn it that I saw myself I did 
hear that there was some fire seen under Mr. Graham's house, or had been 
put under Mr. Graham's house. I heard so, but I did not know it to 
be so. 

Q. Did you hear anybody say that theyjiad seen it? 

A. No, sir ; I just heard that as a rumor that night. 

Q. Did you come to the eonclusiou that it was all a hoax ? 

A. Yes, sir. 

Re- Cross Examination. 

Q. Wliat is the name of the young man who told you of the intention 
to burn Yorkville ? 

A. Harvy Clawson. 

Q. Whose son is he ? 

A. He is the son of lawyer Clawson. 

Q. Is he the Registrar in Bankruptcy ? 

A. Yes, sir. 

Q. Did you go to Yorkville armed ? 

A. Yes, sir. 

Q. HoV many men did you find there ? 

A. I found a pretty big crowd. 

Q. AVere they armed ? 

A. Yes, sir; pretty generally armed with pistols. 

Q. What did you understand from tliem was the object of their 
being there ? 

A. They heard the same thing that I did — that the darkies intended 
to burn the town. 

Q. And they were there to protect the town ? 

A. That was ray understanding. 

Q. How many were there? 

A. It was a pretty big crowd. It was in the evening. I got there 
before night, and the crowd gathered there betwixt sundown aud dark. 

Q? ITow many were there? 

A. There were over one hundred men there. 



256 

Q. How many were armed ? 

A. I cannot tell how many. 

Q. Was there a colored company in towu that night? 

A. Yes, sir. 

Q. Were they armed ? 

A. Yes, sir. 

Q. Where were they stationed ? 

A. The lower end of the town. 

Q. Where were tlie crowd to which you were attached stationed them- 
selves ? 

A. We were stationed nearly in the centre of the towu. 

Q,. And the black company was at the lower end of the towu ? 

A. Yes, sir. • 

Q. Were they armed ? 

A. They had their arms at that time. 

Q. Were they armed that night? the arms had not been taken from 
them ? 

A. No, sir. 

Q. Was there any military or martial music ? 

A. I heard a drum beat. 

•Q. Did it come from the neighborhood of the colored company ? 

A. Yes, sir ; it was down in that neighborhood. 

Q. And the most of them you think were armed and stayed in York- 
ville till after 12 o'clock at night ? 

A. Only a few had guns, and they who had gnus set them away ; I 
think most of them had pistols buckled round them. 

Q, Were you armed ? 

A. I had a double-barrelled gun. 

Q. Was your gun loaded? 

A. Yes, sir. 

Q. What with? 

A. It was loaded with small shot and buck shot. 

Q. Did you not in fact go up there to protect the town from what you 
might suppose was a threat to burn it? 

A. Yes, sir ; that was my intention. 

Q. How far were you from Yorkville vdien you were told to come up? 

A. I was at a neighbor's house near there. 

Q,. Did you meet citizens of the town ? 

A. Yes, sir; I met one man. 

Q. Did he express any alarm ? 

A. One man told me there would be nothing done, and the best^plau 
would be to disperse and go home. 

Q. Was anything done? 



257 

A, No, sir. 

Q. Who was it told you that? 

A. F. J. Bell. 

Q. Who was the Mr. White referred to ? 

A. He was a man living out there seven or eight miles from York- 
ville. I know very little about him. I know the man when I see 
him. 

Q. Did you hear he had been convicted of larceny ? did you hear 
that he had been in the penitentiary? 

Question objected to and Avithdi-awn. 

TESTIMONY OF AKDSEW KIRKPATKICK. 

Andrew Kirkpatrick, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Gorhin. 

Q. State your name ? 

A. Andrew Kirkpatrick. 

Q. Where do you live ? 

A. Seven and a half miles from Yorkville, on the Pinckuey Road. 

Q. What direction from Yorkville ? 

A. Westerly. 

Q. How old ai-e you ? 

A. Twenty, last June. 

Q. When were you initiated into the Ku Klux organization ? 

A. Last February. 

Q. Where? 

A. At home. 

Q,. Who initiated you ? 

A. Chambers Brown. 

Q. What is his relation to the order? 

A. He was the Chief at that time. 

Q. Can you remember the oath, or the substance of it. 

A. No, sir, V 

Q. Can you remember any portion of it? 

A. I remember the last thing. 

Q. What was it? 

A. The traitor's doom shall be death ! death ! ! death ! ! ! 

Q. Have you attended a good many meetings of the order ? 

A. Yes, sir ; I was at one regular meeting. 

"Q. Can you tell who was there? 

17 



258 

A. There were the four Shearer boys — they were brothers — and Eobt. 
Hayes Mitchell. 

Q,. What man is that ? 

A. That man there, [pointing to the prisoner.] 
Q. Who else was there ? 

A. Chambers Brown, Plugh Kell, Elias Ramsay, Eli Ross Stewart, 
Samuel Ferguson, Napoleon Miller, John Miller, Squire Sam. Brown, 
Robert Riggins and Ilugh Warlick. I don't mind whether there were 
any more there or not. 

Q. What did they do at that meeting ? 
A. They elected a new Chief and Turk. 
Q. Who was the Chief? 
A. Robert Riggins. 
Q. Who was elected Turk ? 

A. Napoleon Miller ; I think they elected Chambers Brown as 
Monarch. 

Q. What else did they do ? 
A. I don't recollect anything more. 
Q. Did they elect any Night Hav.'ks ? 
A. No, sir. 

Q,. Do you recollect if they elected any Council or Advisory Board ? 
A. I do not recollect. 

Q,. Did you attend any other of their meetings ? When was that regu- 
lar meeting held ? 

A. I don't remember what time it was ; I think it was after corn plant- 
ing time. 

Q. Was you on the raid on Jim Williams? 
A. Yes, sir. 

Q. Commence and tell us all about that raid ; who gave the order to 
go; where you assembled; where you went to, and what 3'ou did? 
A. Well, we met at the Briar Patch. 
Q. Who gave the order to go there ? 
A. Chambers Brown. 

Q. Who did you meet at the Briar Patch? tell us all about it ? 
A. Wm. Johnson, Harvey Gunning, Bascom Kennedy, Holbrook 
Good, Chambers Brov>n, Elias Brown, Dixon Bigham, Napoleon Miller, 
Samuel Ferguson, John Ciiklwell, Bob Caldwell, Piuckuey Caldwell, Jim 
Neil, Miles Carroll, Ad. Carroll, Dr. Rufus Bratton and Rufus Mc- 
Lain. 

Q. Were you armed and equipped ? 
A. Some of them had pistols and some had guns. 
Q. Wliat sort of uniform did they put on ? 
A. They had different sorts. 



259 

Q. What were tliey ? 

A. Some were red and some were white. 

Q. Were they gowns ? 

A. Yes, sir. 

Q. What did they wear on their heads ? 

A. They had capes that came down over their heads. 

Q. What sort were they ? 

A. They were made out of bhick cloth. 

Q. How were they ornamented ? 

A. Some of them had horns on them. 

Q. Were their horses disguised in any way ? 

A. Some of them were. 

Q. How ? 

A. Some of them had bLankets over them. 

Q. Did the blankets conceal them ? 

A. Yes, sir. 

Q. What was the object of putting blankets over them ? 

A. To keep anybody from knowing them. 

Q. Who took command at the Briar Patch, and gave the order to 
march ? 

A. I do not know who it was told us to march. 

Q. What did you do after you assembled there ? 

A. We got on our horses and started. 

Q. How many different Kltins were represented there ? 

A. I think there were two. 

Q. Which were they ? 

A. Will Thompson's and Chambers Brown's. 

Q. How many men do you think there were at the Briar Patch ? 

A. I do not know. 

Q. How many do you think there were? 

A. Some thirty or forty, I reckon. 

Q. Where did you go ? 

A. We went up to the cross road above Squire Wallace's, crossed the 
Pinckney Road, when we met the four Shearer boys, Hugh Kell and Bob 
Riggins, and Robert Hayes Mitchell. 

Q,. The defendant ? 

A. Yes, sir; and Elias Ramsay. 

Q. AVhat was done with the Shearer .boys ? 

A. They initiated them. 

Q. Who administered the oath ? 

A. Harvey Gunning. 

Q,. What v/as done next ? 

A. We started and went down by Squire Wallace's; went by the 



260 

house, and took the left hand road, and went down by Tom Harkness', 
and got some water at Anderson Latham's. "We Avent on till we got to 
McConnellsville ; we stopped there, at Mr. Joe Moore's, and called the 
colored man out and talked to him. 

Q. Who brought him out? 

A. I do not know. 

Q. Do you know who the colored man was ? 

A. No, sir. 

Q. What did you do with him ? 

A. We didn't do anything with him. 

Q. What did they say ? 

A. I didn't hear. 

Q,. What was done next ? 

A. They mounted their horses and went on. 

Q,. What did you do after taking this colored man out? 

A. I believe the next house we stopped at was on the left hand side ; 
I do not know whose house it was. We stopped there and asked for a 
colored man that lived there, but we did not find him, and we went on 
until we came to the big road ; then we took to the left, and to the big 
road, and to Jim Williams'. 

Q. What did you do there ? 

A. We hitched our horses up on the hill side like. Myself and Bob 
Riggins sat down. That is about all I know. What they did in the 
house, I don't know. 

Q. Did the others go to the house ? 

A. Yes, sir. 

Q. How many went to the house ? 

A. I don't know. 

Q. Did you hear any noise while they were gone ? 

A. I don't remember now whether I did or not. 

Q. How long were they gone ? 

A. I. don't know ; T suppose about a half an hour. 

Q. What did they say when they came back ? 

A. I heard some one say they had hung him. 

Q. Did they use any profane language about him ? 

A. Not that I have heard ? 

Q. What did you do next ? 

A. We got our horses and went across the field till we came to another 
by-road, and then we started toward Yorkville, and went home. 

Q. About what time in the night was it that Jim Williams was 
hung ? 

A. I don't know. 

Q. What time did you get home next morning? 



261 

A. About daylight. 

Q. Did you hear before you got there what they were goiug to do with 
Jim Williams when they found him ? 

A. No, sir. 

Q. You only know that they went up to his house, they had been 
gone half an hour, and that they had hung him ? 

A. Yes, sir. 

Cross- Examination by Mr. Johnson. 

Q. Do you know if the prisoner went to the house ? 

A. No, sir ; I do not think he did. 

Q,. Where was he ? 

A. He was with the horses, I think. 

TESTIMONY OF ELI AS RAMSAY. 

Elias Ramsay, a witness for the prosecution, being duly sworn, testified 
as follows : 

Q. Where do you live ? 

A. York County. 

Q. How long have you lived there ? 

A. I was born and raised there. 

Q. What portion of the County ? 

A. The southwestern part. 

Q. How far from Yorkville ? ^ 

A. About ten miles. 

Q. Did you ever join the Ku Klux organization ? 

A. Yes, sir. 

Q. When was this ? 

A. On the 26th of February, 1871. 

Q. Whose Klan did you join ? 

A. Chambers Brown's. . 

Q. Who swore you in ?~' 

A. Chambers Brown. 

Q. Can you renrember any portion of the oath ? 

A. I remember the first part ; I remember the words, " I solemnly 
swear," but I don't remember any more of it. 

Q. Was there anything in it about the Radical party ? 

A. Yes, sir ; it was to put down the Radical party. 

Q. Was there any penalty for divulging the secrets of the order ? 

A. Yes, sir; any one Avho divulged the secrets, his should be the 
traitor's doom — death ! death ! ! death ! ! ! 

Q. Yf hat meetings of the order did you attend ? 



262 

A. Only one. 

Q. What oue was that ? 

A. It was at the Sharon Meeting House. 

Q. Who was present, and what was done ? 

A. There were several persons present : Esquire Sam. Brown, Cham- 
bers Brown, Robert Riggins, Hugh Kell, Pinckney Kell, Sherrod Child- 
ers, ISTapoleon Miller, John Miller, Samuel Ramsay, Robert Harkness ; 
there were the four Shearer boys and Robert Hayes Mitchell. 

Q. This defendant ? 

A. Yes, sir. 

Q. How long have you known him ? 

A. I have known him for about eighteen months. 

Q. "\Yhat were those raids for ? 

A. It was to go round visiting colored people. 

Q. For what purpose ? 

A. For the purpose of voting. 
' Q. Are you positive about that ? 

A. I heard them say that was their purpose. 

Q. Were they membei's of the order ? 

A. They were members of other orders. 

Q. Wliat was the common understanding ? 

A. That was the understanding. 

Q. Did you hear anybody talk about it at the Shr.ron Church meet- 
ing? 

A. No, sir. 

Q. What was done at that meeting? 

A. A company was organized, and it was for electing new officers. 

Q. Who was elected ? 

A. Robert Riggins ; Chambers Brown, he M'as elected Monarch ; Na- 
poleon Miller, he was elected Turk ; three members of a committee, I 
don't know for what purpose ; I was oue, William Shearer was another, 
and P'n -kney Carroll another. 

A. Who lirst proposed that committee ? 

A. Chambers Brown. They organized that committee to examine 
members. They^ examined them before they took thera in. 

Q. D J you know if any other person was nominated a member of that 
committee before you were elected? 

A. No, sir ; but a number was nominated. 

Q. Was Squire Hope nominated ? 

A. He was nominated that night for oue committee. 

Q. Why was he not elected? 

A. Napoleon Miller said they had no use for bira ; he must be held 
off. He also ran against me. 



263 

Q. Why did he object to Squire Hope? 

A. For uot riding ou raids. I understood he would not. 

Q,. Was he defeated for tha^t reason? 

A. I do not knov/ that that was the reason. 

Q, Were you on the raid ou Jim AVilliams ? 

A. I was one of that raid. 

Q,. Do you know v^^hat the object of that raid was ? 

A. All that I can learn was that it was to seize guns. 

Q. Commence at the beginning, when you first heard of that raid ? 

A. I heard of it that evening at home. Robert Kell came to me and 
told me lo meet the Klan on the big road. I went with Hugh Kell, 
Robert Hayes Mitchell, the four Shearers and Henry Warlick. 

Q. Was that Robert Hayes Mitchell, the defendant ? 

A. Yes, sir. 

Q. Where did you meet with him ? 

A. Two miles from wh«re I lived, and about four miles from Squire 
Wallace's. ' 

Q. Did he ride with you there ? 

A. He rode i'n the crowd to the cross-roads. 

Q. Where did you put on your disguises ? 

A. They had them on wlieu they came up with me. I rode on the 
road near Mrs. Warlick's. The}^ had on their disguises when they came 
there — Hugh Kell, Robert Hayes Mitchell, and the four Shearer boys 
and Warlick. I am not certain whether he had his disguise or not. 

Q. Do you know Robert Hayes Jlitchell ? 

A. Yes, sir. 

Q. How long have you known him? 

A. I have known him for the last ten vearg ; I knew him in the 
war. 

Q. Were you a soldier in the Confederate service? 

A. Yes, sir. 

Q,. Were you in the same company? 

A. No, sir ; we were both in the same regiment ; I personally knew 
him. 

Q,. Did you talk to him that night that you went on the raid ? 

A. Yes, we talked with each other. 

Q. What time did you get to the cross roads ? 

A. About 9 o'clock. 

Q. How long did you wait for the other party? 

A. About an hour. 

Q. When you came, who was in command ? 

A. I do not know; they all came up with their disguises ou, and I did 



264 

Bot know one from another at tlic time they rode up. Orders were then 
given to halt the other squad. 

Q. Who halted them? 

A. Our squad did. 

Q. What did they do that for ? 

A. To' know whether they were friendly or not. 

Q. How did you do it ? 

A. We first stood out in the road, and hollered out, " who goes there ?" 
They said, " friends." We said, " friends to whom ?" " To our country," 
they said. 

Q. Is that the usual way of recognizing friends in the night ? 

A. That was the first I knew of it. 

Q. Who did that? 

A. Hugh Kelh 

Q. After that had occurred, they rode up to where you were ? 

A. Yes, sir ; the four Shearers were initiated there. 

Q. Who swore them in? 

A. Charles Brown; after hallooing, they started for water; they went 
on another road ; passed by Squire Wallace's, turned to the left, down to 
Henry Larkan's to get water; then they went on to another road to Mc- 
Connellsville, and after they got there, the order was to keep quiet ; we 
were going to seize some guns there. 

Q. Did they mean that there should be no conversation ? 

A. Yes, sir ; it meant no loud talkiug ; we went on to another place ; 
a portion of the other men weut on first '( I went on, but was ordered to 
stay with the horses, and weut back ; he said if a pistol fires, then you, 
v.ith the horse?, will come up ; I staid with the horses while them two 
men came up behind, and I halted them ; I asked who they were ; they 
said they were fox hunters, and had their dogs with them ; I asked who 
they were ; one was Dr. Love, aud one was Mr. Latham ; I told them to 
remain till further orders ; in a short time we moved up there ; there 
was no pistol fired. 

Q. Wl^at occurred there ? 

A. I said to Alonzo Brown that Dr. Love was behind ; Alonzo Brown 
then walked up and spoke to him ; he asjvcd him where the guns were. 
Brown saw that they were not there ; he asked Love if he knew any- 
thing about^ it. Love said he thought that they were over at the Be- 
thesda Church. There was a colored man there — a militia man ; he 
thought they'wcre turued over to him, as I understood. From that, we 
started to cross the railroad ; the biggest i)art of the crowd ahead, and a 
part was behind. There was a colored man taken up behind one of them. 
I don't know who he was. 

Q. What was he taken up behind for ? 



265 

A. I don't know ; some man took him up behind, but he was told to 
put him down. I don't know who said " put him down." 

Q,. Go on ? 

A. The black man was then set down from the horse ; we went on 
through the country then, where, I knew nothing about ; I had been to 
McConnellsville before. 

Q. Where did you go ? 

A. We went on — I heard no orders where we were going to — I sup- 
pose about two miles ; I heard some one say, in front of me, the men was 
not in a regular line ; the road was muddy and bad, and the line was a 
hundred yards long; some one said in front of me, four or five horses 
from me, that they were going to hang Jim Williams. 

Q. This the first time you heard what they were going to do ? 

A. The first time I heard Jim AVilliams' name called. 

Q. Did you know who it was that said that ? 

A. No, sir ; I did not recognize the voice. 

Q. Go on now ? 

A. We went on some distance — a mile, I suppose, through the w^oods, 
and went through the w^oods some distance and stopped, and then, all in 
front of me got down, hitched their horses up, and all the men in from 
of me went ofi"; I heard no orders given. 

Q. How many v/ent off, do you think? 

A. I don't know, sif ; I thiuk the biggest part of the crowd ; I heard 
no orders given, and didn't know where they were going ; I got down 
and hitched my horse up, and sat down ; Hugh Kell told me to notice 
his mule while he was gone ; didn't say where he was going, and I sat 
down, and John Caldwell came up and sat down, and said he was sick ; 
that he had the cholic; and the four Shearer boys were sitting off aside, 
just behind where I was sitting; Robert Hayes Mitchell, I heard his 
voice ; there were some more, but I didn't see nor notice how many there 
were. 

Q. They hitched their horses and sat down ? 

A. Yes, sir. 

Q. What did you hear of the party who had gone on in front ? 

A. Never heard a word — where they w'ere gone to, nor what they were 
going to do. 

Q. Where did you understand they were then, with reference to Jim 
Williams? 

A. There was no understanding where they were. 

Q. Do you say you heard anything while they were gone ? 

A. No, sir. 

Q,. How long were the party gone ? 

A. I suppose they were gone twenty or thirty minutes ; then they re- 



266 

turned ; well, I heard a fu.-s during the time they were gone, something 
like a woman in distress. 

Q. "What do you mean, crying ? 
A. Yes, sir. 
Q. Was that all ? 
A. That was all that I heard. 
Q. Can you give any more particulars about it ? 
A. No, sir; nothing more. 
Q,. Except that you heard a woman crying ? 

A. Yes, sir ; it appeared to me like it was a woman's voice, like she 
was in distress. 

Q. How long was that before the party returned ? 
A. But a short time, sir ; I suppose in ten minutes they came back. 
Q,. What did they say when they returned ? 

A. I heard nothing said ; the horses were all scattered, and every man 
held to his horse, mounted his horse, and moved offout of the woods into 
an old field. The first that 1 heard, James Neil said to me, "Some men 
are powerful hard-hearted." 
Q. Well? 
. A. He said no more, sir ; we went on through the fields, fell into the 
big road — the Chester and Yorkvilleroad — and went from there on ; at 
the firj^t house we came to, it was a black man's house, on the right-hand 
side ; I rode up in fi-ont ; a parcel of them was at the black man's house, 
looking up his gun. Dr. Bratton said that he Avas an old man, and said 
he should not be bothered any more. 
Q. Did they take his gun ? 

A. I didn't see any gu.n^ some one went and told the old man ; from 
that they mounted, and rode on past Brattonsville ; they called it ten 
miles from York ; passed on up there, and just below there the party di- 
vided, one party taking the right, and the other kept on up the big road 
to the left; I was with the party that was on the left. 

Q. Now, before you divided there, did you have anything to eat ? 
A. No, sir; not there; the party I was in went on up above to John 
S. Bratton's house ; there we stopped ; the other party came around. 
Q. Joined you there ? 

A. Came around, yes, sir ; and joined us there. 
Q. What was done there ? 

A. There was — I rode up into the crowd that came ; the biggest part 
of the crowd had gone on ; I heard that they, were passing around some 
crackers and whiskey and some meat ; but.1 didn't get any meat. 
Q. Any ham ? 

A. I didn't get any ham, nor no cheese; I only got some crackers and 
whiskey. 



267 

Q. Was there liam and crackers there ? 

A. I Jid not see auy. 

Q. You saw the whiskey? who furnished those things? 

A. I don't know. 

Q. That near John Bratton's house ? 

A. Just above his house, sir. 

Q,. What did you do next, after you got through with your lunch ? 

A. Some of the crowd hollowed hold up the guns, to aud how many 
guns they had got ; the guns were held up ; I did not understand how 
many there was, but from the looks of them it looked like there might be 
twelve or fifteen guns. 

Q,. Did you hear anybody say that Jim Williams would be hung that 
night? 

A.. No, sir; just then Will Johnson said that he wanted a squad of 
men to go down to John Bratton's house ; called a parcel of men; I was 
one of the men ; I didn't understaud what I was called to go for ; I 
walked out with them down to John S. Bratton's house ; we coilie up on 
the piazza, and they hollowed for him several times to come out, and at 
last he came out ; he was very slow before he came out ; he came out with 
his under-clothes on, and they asked him what he meant by having his 
placearmed with guns — having all his men on his place armed with guns ; 
he said he could not help it, the State had armed them ; Bratton said if 
he got any more guns on his place' he would hold him responsible for the 
last gun ; he said it looked hard if a man would be held responsible for 
what the State would do. 

Q. That is, Bratton said so ? 

A. He said that he voted no Radical ticket ; that he had not armed 
the negroes ; there was nothing more said, as I remember ; we left there, 
got on our horses, and the front of the column came into the road, and 
up in the direction of Yorkville ; we overtaken them this side of Guthries- 
ville; we came in from therc on up ; well, we stopped at some houses just 
this side of Guthresville for guns. 

Q. They kept dropping into houses, as they went along, for guns, this 

side of Guthriesville ? 

A. There was several houses passed that I don't know whether they 
stopped at or not'; we were behind, I and a squad of men that had been 
left at John Bratton's ; the first houses we passed by we didn't stop; 
the head of the column was still ahead; we made no halt at the first 
house ; we were some short distance behind ; but just this side of McCon- 
nellsville, they stopped at Major Wallace's, and looked there for guns. 

Q. Do you know any of the colored people whom they visited ? 

A. No, sir; don't know the first man's house ; we passed on from there 
by Mr. Sam. Hemphill's, from there by Mr. Sam. Lindsay's, from there 



268 

by Mr. Saiiders'; stoj^ped at some of the houses there ; got no guns from 
there; went on to Philadelphia Church, and there I left them. 

Q. What time did you get home in the morning? 

A. I got home, sir — it was after day light ; I and Kobert Riggins went 
from there home. 

Q. Did you ever hear of any Democratic " niggers," as they call 
them, being visited by the Klau ? Was not it the understanding that 
they were not to raid on such ? 

A. Well, I didn't hear the Democrats mentioned very much about it. 

Q. Didn't have many of that kind ? 

A. No, sir; not many. 

Q. Now what did you understand was the motive of killing Jim Wil- 
liams ? 

A. I heard Chambers Brown say, on Thursday afterward, that he was 
a leading Radical amongst the niggers down there ; consumed a good 
deal of time of the men's that belonged to the company. 

Q. He \vas a leading Radical among the negroes down there, and con- 
sumed a great deal of time ? 

A. Yes, sir. 

Q. (by the Court.) Of the members of the company ? 

A. Yes, sir. 

Q. Did you discuss with him at that time, of the murder ? 

Mr. Johnson. With w^hom ? 

Mr. Corbin. Chambers Brown. 

A. He said that he was hung. 

Q. And mentioned that he was the leading Radical down there ? 

A. Yes, sir. 

Q. Where is Chambers Brown now, do you know ? 

A. No, sir. 

Q,. AVhen did he leave the country, if he left the country ? 

A. He left a few days before I was arrested. 

Q,. When Avere you arrested ? 

A. On the 21st of October. 

Q. Have you heard of him since ? 

A. No, sir ; I have not heard of him since. 

Or OSS- Examination hij Mr. Johnson. 

Q. Didn't hear anything said of Democratic negroes, I understand 
you to say, jMr. Witness, being raided upon ; do you know of any negroes, 
supposed to be Democratic, being arrested by the military and confined 
in jail? 

A. No, sir; I don't remember. 



269 

Q,. How many others did you visit that night, the Klan of whicli you 
were a member, besides Rainey's house ; you have me:itioaed a good 
many, but I forget the number of them ? 

A. I don't know the number of them myself. 

Q. Was it eight or ten ? 

A. There was more places than I knevs'; I didn't know how many was 
visited ; I didn't know many were visited in the rear of John S. Brat- 
ton's house. 

Q. But the places visited that you did know; was anything done 
except to search for guns ? 

A. Nothing done, sir ; only wanting guns ; they give up their guns. 

Q. And the result of the raid was that twelve or fifteen guns were 
found ? 

A. Yes, sir. 

Q. What other place did they go to ? 

A. Went up the road, sir, in the houses on the other side of the road, 
hunting for guns. 

Q. Do you know how many guns they got in the whole? 

A. No, sir ; I don't know of their getting any more after they left 
Bratton's. 

Q. Do you know what kind of guns they were ? 

A. They looked lilce the army auns. 

Q. Did you not know that they were guns furnished to the blacks by 
the State, or did you know anything about it ? 

A. I did not know, I only heard that the State had furnished those 
guns. 

Q,. You did find that they were muskets ? 

A. They were breech-loaders. 

Q. You don't know where they came from ? 

A. No, sir. 

Q. How far do you live fi'om Yorkville ?. 

A. Ten miles. 

Q. On what day was the raid, of which you were one, which ende*] iu 
the hanging of this poor fellovv' ? 

A. I don't understand you. 

Q. you say you went on a raid, which ended in the hanging of Eainey ? 

The Court. Williams. 

A. Williams was the name that I understood. 

Q. What is the other name ? 

A. Well, I have heard since I was in jail, Jim alias Rainey. 

Q. What day of the month was it, or what month ? 

A. It was ]\Iarch, sixth of March — sixth night. 



270 

Q. Well, at that time, or before that time, had you any knowledge 
that there had been fires in the neighborhood ? 

A. Yes, sir ; there had been several fires. 

Q. Had you then any knowledge — or had you heard that threats had 
been used by the blacks, or someone of the blacks, to burn and destroy or 
kill the whites — to murder from the cradle to the grave, there ? 

A. Yes, sir. 

Re-D,lrect Examination. 

Q. Did you hear any body say it among the negroes ? 
A. No, sir. 

Re- Cross Examination. 

Q. What I asked you was, whether you heard that such threats had 
been made ? 

A. I heard by white people ; I didn't hear by negroes. 

Re-Direct Examination. 

Q. It was hearsay ? 

A. All hearsa3^ 

Q. You didn't know anything about it ? 

A. No, sir. 

TESTIMONY OF SAM FERGUSON. 

Sara Ferguson, a Avitness for the prosecution, being duly sworn, testi- 
fied as folloY>'S : 

Direct Examination by Mr. Corhin. 

Q. How old are you ? 
A. Sixteen years old. 
Q,.' When did you become a Ku Klux ? 
A. The sixth day of last March. 
Q,. W^ho initiated you ? 
A. Harvy Gunnings. 

Q. Was that the night of the raid on Jim Williams ? 
A. Yes, sir. 

Q. Where did he initiate you ? 
A. York vi lie. 

Q. At what time in the day ? 
A. About the middle of the evening. 

Q. Middle of the evening ? Yv'^hat time in the afternoon, after dark or 
before ? 



^271 

A. It was before dark. 

Q. After he had initiated you, what did he tell you to go and do tha 
night ? 

A. He told me he wanted rae to go to the old field — the Briar Patch. 

Q. In the first place he blindfolded you ? 

A. He blindfolded me and told me to get down on my knees. 

Q. And then what ? 

A. Then he came over the oath then. 

Q. Can you tell us what the oath was ? 

A. I can tell you some of it. 

Q. Tell us what you know ? 

A. Well, they were not to tell any secrets-nor signs. 

Q. What was the penalty if you did? 

A.. Death. 

Q. Well, after you v*'ere initiated he told you you must go meet them 
at the Briar Patch ? 

A. Yes, sir. 

Q. What did he tell you they were going there for ? 

A. He didn't tell me Avhat ; said there was going to be a meeting there. 

Q. Did you go ? 

A. Yes, sir. 

Q. Who did you go with ? 

A. I went with Pole Miller and Josiah Martin, part of the way. 

Q,. How many people did you find there when you got there '? 

A. I don't know how many were there. 

Q. A great many ? 

A. No, sir ; not a great many. I don't know how many there^yere— -I 
reckon there were about twenty — I reckon. 

Q. What did they do then ? 

A. Well, they put on their disguise. 

Q. Did you put on one ? 

A. I put a piece of cloth over my face. 

Q. What did you do that for ? 

A. Well, because they told me to do it. 

Q. For the purpose of covering your face up, was it? 

A. Yes, sir. 

Q. They all put cloths over their faces? 

A. Yes, sir. 

Q. What did you do next? 

A. Well, they got on their horses. 

Q. Who took command? 

A. I don't know who. 

Q,. Were the men numbered or not? 



272 

A. Yes, sir ; I thiuk tliey were. 

Q. How were they numbered? What number did they give them ? 

A. They just say No. 1 and 2. 

Q. Each man present was given a number, commencing with ISTo. 1 ? 

A. Yes, sir. 

Q. What was your number ? 

A. I don't remember. 

Q. You had a number ? 

A. Yes, sir. 

Q. When were they numbered? 

A. I don't know. 

Q,. When did you start off then, where did you go, and what did you 
do? 

A. Then we went on down to the Pinckney Road — the cross roads ; 
then they met another crowd there. 

Q,. Whom did they meet there? 

A. There were the four Shearer boys. 

Q. Brothers? " . 

A. Yes. 

Q. Who else was there? 

A. There were Bob Riggius and Hugh Kell. 

Q. Who else? 

A. I don't know who else. I didn't know all of them. 

Q. How many were there ? 

A. I don't know how many there was ; wasn't very many though. 

Q. AVhat was done then ; anything ? 

A. They swore them four Shearer boys. 

Q. What did you do there ? 

A. Well, they got on their horses again and started down the big 
road. 

Q. Where did they go to? 

A. Went down below Squire Wallace's, and started off to the left 
hand. 

Q,. Go on ; what was it they did ? 

A. They went on and stopped at Anderson Latham's, and got a 
<lrink of water. 

Q. What next? 

A. They went on and stopped at a lane ; went on a good piece and 
stopped at a lane, and some of them got off their horses and left them 
there, and went up across the field. 

Q,. Go on as far as you can ? 

A. Then they went on up the railroad — the balance of them. 

Q. Whereabouts on the railroad ? 



A. Right where the road crosses the railroad. 

Q. What did you do there? 

A. We stopped there, and they fetched out a nigger man out there. 

Q. Who was it? 

A. I don't know who he was. 

Q. What did they do with him ? 

A. Some of them took him up on behind. 

Q. On the mule ? 

A. Mule or horse. 

Q. Who was it? 

A. I don't know. 

Q. What did they do that for? 

A. I don't know v/hat for. They took him on a little piece and 
then they let him down. 

Q. Why did they let him down ? 

A. I don't know why. 

Q. Where did you go? 

A. They went on, and some of Miem stopped at another house by 
the side of the road. 

Q. What did they do there? 

A. I don't know. I don't k lov.' whether they done much of anything; 
I was off a piece. Then they went on a good piece further and took off 
through a piece of woods, and went on through the woods a good piece, 
and then they all got down off their horses. 

Q. What was done then ? 

A. Some of them went dov.'n across the woods. 

Q. flow many ? 

A. I think about ten or twelve. 

Q. What did they do down there? 

A. I don't know what. 

Q. What did you hear while they were gone ? 

A. I didn't hear anything about them. 

Q. Do you know how long they were gone ? 

A. No, sir. 

Q. How long were they gone? 

A. I don't know ; I reckon about an hour. 

Q. What time of night was it ? 

A. I don't know. 

Q. When they came back, what was done ? 

A. They said for everything to get on their horses. 

Q. Did they say anything about what they had done ? Did you hear 
anything about having killed a d — d Radical ? 

A. !No, sir ; not there. 
18 



274 

Q. Where did you hear thiit remark ? 

A. I didn't hear it anywhere. 

Q. Tell us what you did hear about it? 

A. We went on a piece fui;ther that day. Chambers Brown told me 
they had hung a nigger that night. 

Q. Tell you who it Avas ? 

A. No, sir. 

Q. Tell you what they hung him for ? 

A. JSlo, sir. 

Q. When did he tell you that ? 

A. He told me that before "we got down to the branch. 

Q. How far was it from where you hitched the horses ? 

A. A good peace ; I don't know how far. 

Q. After that, where did you go to ? 

xV. We came up the road right straight. 

Q. What did you do on the way ? If you stopped to visit houses, say 
so, say so ? 

A. I expect some of them stopped to visit houses, but I didn't see any 
of them do it. Then they went on up there above the big white 
house. 

Q. Whose house is that ? 

A. I don't know ; I reckon some of the Brattons' houses. 

Q. What did you do there ? 

A. They stopped there and had something to eat. 

Q. What? 

A. They had some crackers. 

Q. Anything else ? 

A. That is all I got. 

Q. Where did yo'u go from there? 

A. Went right straight up the road, off home. 

Q. Where else, what did you do, go home ? 

A. Yes, sir. 

Q. What time did you get home ? 

A. I got home just before day a little while. 

Q. Who went home with you to Yorkville? Who was with you? 

A. Pole Miller was with me when I got home. 

Q. Do you live in Yorkville ? 

A. No, sir. 

Q. HoAv far from Yorkville? 

A. About three miles. 

Q. Did you go through Yorkville? 

A. No, sir. 

Q. T-iat is the only raid you were ever on? 



275 

A. That is all. 

Q,. You were iiiitialed that night ? 

A. That clay. 

Q. That day? 

A. Yes, sir. 

Q. Why did you join the organization ? 

A. Well, I was — because — 

Q. Who induced you to join the Klan, and what reason did he give ? 

A. Pole Miller told me he wanted me to join. 

Q. What reason did he give for wanting you to join it ? 

A. He did not say why he wanted me to join it. 

Q. Did he say anything about whether it would be better or worse for 
you to join it ? 

A. No, sir. 

Q. Did he tell you what the object of the organization was ? 

A. No, sir. 

Q. Had you known any members of the organization before that 
time — know any members of the Klan ? 

A. I knowed one; I knowed Pole Miller j nd Aly Stewart. They 
came along and called me out. 

Q. What for? 

A. They asked me the way to York. 

Q. Did they have disguises on ? 

A. I don't think they were disguised ; they had white cloths on their 
horses. 

Q. Did he speak of this to you, or did you speak of having seen 
tliera ? 

A. I did. 

Q. What did he say ? 

A. He first said it was not him, I believe. I told him I knew it was 
him. 

Q. What did he say then ? 

A. He said it was him ; he said it was Aly Stewart along with him. 

Q. Then what next? 

A. He told me he Avanted me to join. 

Q. And you told him you would ? 

A. Yes, sir. 

Q. You are the son of a widow ? 

A. Yes, sir. 

Q. The only son ? 

A. No, sir ; I have one brother. 

Q. Older or younger ? 

A. Older. 



276 

Q. Where is he? 

A. He is at home. 

Q,. Is he a member of the Klan ? 

Mr. Johnson. AVhat kas that to do with it ? 

A. Yes, sir. 

Q,- Are you the only support of your mother — you and your brother ? 

Mv. Johnson. What has that to do with it ? 

Q. Are you the only support of your mother ? 

Ml-. Jghuson. We object to that. 

Mr. Corbin. We are giving the motive of this institution. Our dis- 
tinguished friends on the other side have chosen to resort to all sorts of 
shifts to indicate the motives of individuals to join this order. I want to 
show by this lad that he was the only support of a widowed mother, and 
he was simply induced to go on this raid. 

Mr. Johnson. I don't see' that the question whether he is the only sup- 
port of his mother has anything to do with it. 

Mr. Corbin. We have nothing more to say. 

Mr. Johnson. I know, but you have said it. 

The Court. It is not pertinent to shovr it. 

Mr. Corbin. It is the same course pursued by the counsel on the other 
side. 

Mr. Johnson. I beg your pardon. 

Mr. Corbin. I insist that it is. 

The Court. Gentlemen, go on. 

Mr. Corbin, (to witness). Come down. 

Mr. Johnson. Wait, you have no right to set him aside. 

Cross- Examination by Mr. Johnson. 

Q,. You live three miles from Yorkville? 

A. Yes, sir. 

Q,. Are you often in Yorkvillej or were you at that time ? 

A. Yes, sir. 

Q. Did you hear or know anything of there being fires in that neigh- 
borhood before the Gth of March? 

Mr. Corbin. Now, I want the Court to understaud that when they 
ask these witnesses about fires, we insist that it is all hearsay testimony, 
and is not entitled to come in. 

jSIr. Johnson. The Court has decided that. 

The Court. Go on Mr. Johnson. 

Q. The question that I put to you is : At that time had you heard, or 
months before, tliat there were fires in the neighborhood ? 

A. Whore, in our neigliborhood ? 

Q. In the neighborhood of Yorkville? 



277 

A. I don't mind tliat I heard tell of some fires. Not certain much 
about it. 

Q,. Did you hear that any threats had been made by any black per- 
son to burn and destroy the property of whites, or murder whites from 
the cradle to the grave ? 

A. No, sir; didn't hear anything of it. 

Q. Did you see this man on the night of that raid ? 

A. Whatman? 

Q. The man on trial ? 

A. No, sir ; I don't mind recognizing him. 

Q. You don't know him ? 

A. Oh ! I know him very well. 

Q. Did you recognize him that night ? 

A. No, sir. 

Re-Direct Examination. 

Q. Didn't know whether he was or not ? 

A. No, sir. 

(X Did you know half the people that were there ? 

A. I don't know whether I did or not. I expect I did. 

Q. That is, you didn't recognize half of them that night, did you ? 

A. I don't expect I did. 

TESTIMONY OF ELIAS KAMSAY, (RECALLED). 

]\Ir, Corbin. Eiias Eamsay, who was just on the stand, informs me that 
he desires to be recalled, because, he says, in the excitement of the mo- 
ment, he omitted to name sorue parties that were there. I ask that he 
may be recalled. 

Mr. Johnson. "We do not object. I 

Q,. You have requested to be recalled to state some names that you 
omitted in the excitement of the moment? 

A. Yes, sir. 

Q. Who Avere they that you omitted? 

A. Well, John Caldwell, Pinckney Caldwell, Robert Caldwell, An- 
drew Kirkpatriek, Sam. Ferguson, Napoleon Miller, Will Johnson, Har- 
vey Gunning, among others ; some other names that I have set down 
here, that I could call the names over in the writing, that I was v»'ith. 

Q. Well? 

Mr. Johnson. We admit, may it please your Honors, that all he says 
were there. 

Mr. Corbin. Go on and name them. 

A. (Keading from memorandum.) The four Shearers, Robert Riggins, 



278 

Hugh Kell, Heury Warlick, Robert Ha3'es Mitchell, Chambers Browu, 
Alonzo Brown, Will Johnson, Dr. Bratton, Milus Carroll, John Cald- 
•\vell, Robert Caldwell, Pinckney Caldwell, Harvey Gunning, James J^eal, 
Anderson Carroll, Robert Bigham, Andrew Kirkpatrick, Samuel Fergu- 
son, Pole Miller. These are men that I recognized on the raid that 
night. 

Mr. Corbin. If the Court please, we rest here — do not propose to in- 
troduce any more testimony in this case. 

The Court here took a recess of fifteen minutes, and, at 3 o'clock P. 
JI., the proceedings were resumed. 

Mr. Corbin. If the Court please, I have mentioned to the counsel on 
the other side, that we would like to call one v.ituess, and Mr. Johnson 
tells me that he does not object. 

TESTIMONY OF AMZI EAINEY. ^ 

Amzi Raincy, a Avitness for the prosecution, being duly sworn, testified 
as follows : 

Q. Where do you live ? 

A. On Mr. Gill's place. ^ 

Q. In York County ? 

A. Yes ; in York County. 

Q. HoAV long have you lived in York County? 

A. I have been born and raised there. 

Q, How old are you ? 

A. About twenty-eight years old. 

Q. Have you been a voter in York County ? 

A. Yes, sir. 

Q. Have you voted ? 

A. Yes, sir. 

Q. Nobody has ever questioned jouv right to vote there, have 

they? 

A. No, sir. 

Q,. D'id you vote at the last election ? 

A. Yes, sir. 

Q. Vote for A. S. Wallace ? 

A. Yes, sir. 

Q. Vote the rest of the Republican ticket ? 

A. Yes, sir. 

Q. Now, will you tell the jury whether the Ku Klux raided on you, 
and what they said and what they did to you ? Tell us all about it? 

A. Well, on a Saturday night, about ten o'clock — 

Q. When was that ? 



279 

A. It was about the last of March, as near as I can recollect. I was 
laying down — I laid down at the first dark — and was laying down ])y 
the fire. The rest done been alied, and, about ten o'clock, my little 
daughter called me, and said : " Pappy, it is time we are going to bed ; 
get up ;" and just as I got up, and turned around, I looked out of the 
window, and I sec some four or five disguised men coming up, and I ran 
np in the loft, and they came on ; come to the door ; and when they 
come to the door, thev commenced beatine: and knocking. " God damn 
you, open the door! open the door! open the door !" and commenced 
beating at each side — there is two doors — and they commenced beating 
both doors, and mj wife run to one of the doors, and they knocked the 
top hinges off of the first, and she run across the house to the other, and 
agin that time they got the two hinges knocked ofi^ the other door, and 
the bolt held the door from falling, and she got it open — that is, she 
pulled the bolt back and throwed it down, and when they come in, they 
struck her four or five licks before they said a w-ord — 

Mr. Johnson, We olSject to all this, may it please your Honors. 

The Court. Let him go on. 

A. They asked Iter v>ho lived here. She said, " Rainey — Amzi 
Raiuey." "What Amzi Rainey? What Amzi , Rainey ?" And she 
said, "Amzi Rainey," and he struck her another lick, and says : " Where 
is he? God damn him, where is he ?" And she says : " I don't know." 
And one said : " O. I smell him, God damn him ; he has gone up in 
the loft" He says: "We'll kill him, too," and they come up then. 
This kSam Good, they made him ligjit a light — 

Q. Who is Sam Good ? 

A. It is a black man, that lives on the same place. 

Q. You say he had come on with them ? 

A. Yes, sir. And he lit a light, and they made him and my wife go 
up before, and he followed them up there, and I was in a box, and they 
said : " Oh, he is in this box, God damn him, I smell him ; we'll kill 
him!" and the other says: "Don't kill him yet;" and they took me 
down. This man that struck my wife first, ran back to her and says : 
" God damn her, I will kill her now ; I will kill her out ;" and the one 
that went after me, he says : " Don't kill her ;" and he commenced beat- 
ing her then ; struck her some four or five more licks, and then run back 
and struck me ; he run back to her then, and drawed his pistol, and 
says : " Now, I am going to blow" your damn brains out ;" and the one 
by me threw the pistol up, and says : " Don't kill her." He aimed to 
strike me over the head, and struck me over the back, and sunk me right 
down. Then, after he had done that, my little daughter — she was back 
in the room with the other little children — he says : " I am going to kill 
him;" and she run out of the room, and says: "Don't kill my pappy; 



280 

please don't kill ray pappy !" lie shoved her back, and says ; " You go 
back in the room, you God damned little bitch ; I -will blow your brains 
out !" and fired and shot her, sure enough — ■■ 

Q. Did he hit her ? 

A. Yes, sir ; he hit her ; and aftor he had done that, she went back 
into the room, and they commenced shooting over me — two shots over 
me, and two shots over my wife ; they shot about fifteen shots ; and I 
had a sleeve jacket on ; it was woolen, and they set fire to it — just in a 
light blaze of fire — and after that was done, they hollered to me: " Put 
out that fire, I would burn up, and damned if I wouldn't go to hell." 
Then my little daughter had catched her hand full of blood, got to the 
door, and just thro wed it out; and they looked around and see that, and 
see her ; and then they took me — 

Q. Where did they hit your daughter ? 

A. Kit her on the forehead ; the ball glanced ofi" from her head. 
Then they took me right off. 

Q. Off where? 

A. Off irp the road, about a hundred and fifty yards; and they wanted 
to kill me up there, and one said, " jSTo, don't kill hira, let's talk a little 
to him first." Then, he asked me which way did I vote. I told him I 
voted the Radical ticket. "Well,'' he says, "now you raise your hand 
and swear that you will never vote another Radical ticket, and I will 
not let them kill you." And he made mc stand and raise my hand before 
him and my God, that I never Vv'ould vote another Radical ticket, against 
my principle. 

Q. Did you swear so. 

A. I did raise my hand and swear. Then he took me out among the 
rest of them, and wouldn't let them shoot me, and told me to go back 
home. 

Q,. Did they .make anybody else swear right there that they wouldn't 
vote the Radical ticket? Was Sam Good there? 

A. Yes, sir. 

Q. What did they do to hira ? 

A. They asked hira which way he voted. lie says the Radical ticket, 
and they asked if he would ever vote any Radical ticket, and Sara told 
them " No, sir." And that was all that I heard passed 'twixt them and 
Sara. 

Q. What did they do when you went home ? 

A. After I went back, my wife, she hobbled out — 

Q. When you left them, what did they do to you ? 

A. Told me to run ; and throwed two big rocks after me, about the 
size of my fist. 

Q. Did they hit you ? 



281 

A. No, sir ; one weut one side into a wood pile, and the other struck 
the chimney. 

Q. Hov/ many of t]ie Ku Klux were there ? 

A. It looked to me like there was about twenty-five. 

Q. How were they dressed ? 

A. Had on — some of them had on vvdiite gowns-, and some of them 
had on red ones, and had on false faces and something over their 
heads. 

Q. Did you know any of them ? 

A. No, sir. 

Q. Didn't know any of them ? 

A. Didn't know any of them. 

Q. What time in the night was this ? 

A. About ten o'clock — 'twixt ten and eleven o'clock. 

Q. Do you know what tliey did to your daughter in the other room ? 

A. Yes, sir. 

Q. Did you see it J^ourself? 

A. I didn't see it ; have only her word for it. 

Q. I won't ask you that then ? 

A. I didn't see that. 

Mr. Corbin. You may have the witness. 

I\Ir. Johnson. We have no questions, may it please your Honors. 

Mr. Corbin. We will stop here, if the Court please, inasmuch as we 
agreed withthe other side that we wouldn't call but one witness. 

Mr. Johnson. We have no objections to your calling more. 

Mr. Corbin. You have no objections ? 

Judge Bond. Do you propose to call anybody else? 

IMr. Johnson. We want to know if they are through, sir. 

^■Ir. Corbin. We will call one other. 

Mr. Jolmson. I don't like to object to the course which counsel for 
the United Stases has pursued. It is suggested to me that v/hat he 
is doing now — 

Mr. Corbin. I thought that you didn't olyect. 

Mr. Johnson. The purpose no^v, as I understand it, is merely to offer 
cumulative evidence. If there is any new fact — 

Mr. Corbin. This is a new fact. 

Mr. Johnson. If it is to be a new fact, it is another matter. 

i-rlr. Corbin. It is a new fact. 

TESTIMONY OF DICK WILSON. 

Dick Wilson, a witness for the prosecution, being duly sworn, testified 
as .follows : 



282 

Q,. (by ^Ir. Hart, for tlie defense). Have you been in the Court room 
to-day ? 
A. No, sir. 
Q. Yesterday? 
A. No, sir. 
The Court. That is a question of credibilit}-, and not admissibility. 

Direct Examination by Mr. Corhin. 

Q. Where do you live ? 

A. I live in York District, sir. 

Q. On whose place, in York County ? 

A. Dr. Dowry's. 

Q,. Did you vote at the last election ? 

A. Yes, sir. 

Q. AVhich ticket did you vote ? 

A, I voted the Republican ticket. 

Q. Did you vote for Mr. Wallace ? 

A. Yes, sir. 

Q. Have 3"ou voted there before ? 

A. Yes, sir. 

Q. Nobody questioned your right to vote when you did vote ? i 

A. Not particularly, at the ballot box. 

Q. Now tell us whether the Ku KIux visited you, aud where ? 

A. Well, they Visited me on the 11th April, about two hours before — 
well, about, 'twixt two and three o'clock in the morning. I had been up 
till it was li'ght, and laid down and got into a sleep, and I woke up, and 
these men were in the yard ; two of the men came to the house, and the 
other four went to my son's house. 

Q. What is his name? 

A. Kichard. These men came to my house. First words I noticed 
them saying was, " Open the door."' Next w^ord was, " Make up a 
light ; make up a light." I immediately then jumped up and drew on 
my pants, aud by that time the door fell in the middle of the floor. They 
commenced firing under the door and around the house. I stood still 
then. They stopped then for a minute, aud asked me to make up a light 
again. I jumped to the fire and made up a light. The next question, 
" Who lives here?" Says I, " Dick Wilson." " Is this old Dick ?" I 
tojd them, " Yes, sir." " Where is your son ?" " I don't know, sir, 
where he is." " You are a dam'd liar, sir ; walk out here ; I have a word 
with you, sir," " Very well, I will come out." "Come out; come out. 
right now; come out." I walked out. "Go on down here before me, sir, 
to the other house." Aud there was four men in there ; a big light ia 



283 

the house ; a good knot of plue on the fire, and they went searching cup- 
boards and trunks, and looking everywhere. I could Eee them as plain 
as I can see you right now. Well, they searched the house all over, and 
they could not find him. They said, " Look under the floor." Well, 
they tried to get up the floor, but the floor was so well nailed they didn't 
get it up. One of the men, in the middle of the house, turned around 
and says, " What G — d damned rascal you've got there ?" Some man 
says, " That is old Dick Wilson." " What are you going to do with that 
damned old son-of-a-biteh ?" " Well, w'e haint determined on what we'll 
do with him." They still searched on, and couldn't find him. 
Q. Couldn't find what ? 

A. Couldn't find my son, and they came out. After they came out, 
then the question is put me, " Where is your son '?" Says I, " Gentlemen, 
I don't know." " Your sou ; don't you call me any gentleman ; we are 
just from hell fire ; we haven't been in thi.s country since Manassas ; we 
come to take Scott and his ring ; you damned niggers are ruining the 
country, voting for men who are breaking the treasury ; where is your 
son, I say ?" " I don't know, sir, where he is." " You are a damned 
liar, sir; and I will malve you tell where he is. Don't you rather the 
men of this country would rule it, sir, as these men as is ruling it ?" Says 
I, " I didn't know there was any other men ruling but the men of this 
country." " Is Scott a man of this country, sir ?" Says I, " I don't 
know ; I never seen him." " Then, Avhy is it you don't go to some good 
old citizen in the country who would^tell you how to vote ?" Says I, " I 
went to men who I thought knowed and ought to know." " Who were 
they?" "Well," I says, "that was Mr. Wallace." "Yes; just as 
damned a rascal as you are." " I went to Mr. Wallace, and I went to 
several other gentlemen that I did name out." " Well, what about the 
League ?" I told him that I did belong to the League. 

Q. What — the Union league ? 

A. Yes, sir. " I suppose, then, you are a good old Radical ?" Says I, 
" I don't know whether I have been ; I have tried to be.'' " Yes, and 
damn you, we'll make a Democrat of you to-night ?" That was the next 
word. Another little one jumpec^up there, Avith some horns on his head, 
and says : " We'll take the damned rascal ofi* and remind him of what 
we have told him before this ; we have told him this long ago, and we 
want to be obeyed ; now we will take satisfaction ; walk on here, sir ; 
take the road before me." I walked on, • " Drop your breeches, God 
damn you." I just ran out of them, " Stretch out ; we want to make a 
Democrat out of you to.night." I stretched out full length, just as long 
as I could get ; I'would have got a little longer if I could. 

Q. Did you drop your pants ? 

A. Dropped them down— just fell out, full length. 



284 

Q. And then v/hat ? 

A. One went that side and two on this side. Well, they commenced 
yrhipping me ; I commenced begging them so powerful. " Don't beg 
God damn you ; ' if you beg I'll kill you." One of them said, *' Stop 
this whipping right off. One of you gentlemen take that pistol and go 
to his head, and t'other to his feet, and if he hollows or moves I will blow 
his brains out." Then they commenced whipping me; they just 
ruined me ; they cut me all to pieces ; they did do it, and I wouldn't 
mind it so much if they had scattered the licks, but they whipped 
all in one place ; that is what they done ; they stopped on me then for 
a while. " Will you vote the Democratic ticket next time?" " Yes, I will 
vote any way you want me to vote ; I don't care how you want me to 
vote, master, I v/ill vote." Says he, " there now, put it to him ; God 
damn him he has not told us yet where his son is ; we have got that much, 
and we will get the balance." They commenced v/hipping me again. I 
told them at last I did not know where he was, and I didn't know where 
he was. After thd^y got done whipping me, they ordered me to get up as 
quick as I could ; I couldn't get up very fast ; quick as I got up, I drav/ed 
up my pants ; couldn't button them, nohow. Had them in my hands. 
" Now let's see how fast you can run." Well, I w'as going to strain every 
leader that was in me, because I was hurt so that I could hardly move ; 
but I intended to do my best. The other says, " I have a word or two to 
speak to him. I will give you ten days — you and your son both — to go 
and put a card in Grist's* oiBce, and show it ; and let it come out in the 
papers in ten days from now, to show that you are done with the Repub- 
lican party, Scott, and his damned Ring ; and if you don't do it, I will 
come back for you both again ; and if I can't get you at night, I will take 
you in daylight. Go off in the house, and shut the door." I went off in 
the house sure enough. I shut the door. I was lyiug down^on the floor. 
I wasn't able to go to bed. I go^ worse after I got to the house. 

Q. How bad were you whipped ? 

A. I waa whipped badly. I had on me a pair of pants too large ; and 
next day I had to tie a string on them so they would meet. 

Q. Your back was all whipped to pieces ? 

A. Just all hove up. It was not cut up so, but Avas bruised. 

Q. ^V■hat did they whip you with ? 

A. Yv^ith ramrods. 

Q. Take them out of theic guns ? 

A. Took them out and twisted them up. 

Q. What were the}'' — iron ramrods ? 

A. I don't know. There was one felt very much like it. I can't say 
positive that they was iron ramrods. They had this brass put on them 
*Eaitor of the YoikviUe (S. C.) Enquirer. 



285 

Avliere they rammed the powder and stuff down in the guns. These was 
there next morning — white oak ramrods. 

Q. Did you find them ? 

A. Yes, sir. 

Q,, How much did you find of the ramrod ? 

A. I found tv/o pieces right at the house, and betwixt ray house and 
the creek I found the other. 

Q.. There were three broken ? 

A. Yes, sir ; both of* them. 

Q. How big were they ? 

A. About the size of my finger. 

Q. Did you go and put a card in the paper as they told yqu to ? 

A. No, sir ; I did not ; I did not do anything. 

Q. Did you stay at home nights after that ? 

A. Yes, sir ; I stayed at home ; they tokl me to stay at home, and I 
done it. 

Q. How" long before you were able to work after that ? 

A. I went and knocked about, but I wasn't able to do a piece of work 
under a week ; and to do a good day's work, I wasn't able to do it in two 
weeks ; because I couldn't walk. I couldn't sit down ; and when I lay 
down, I v/ould have to lay right flat down on my stomach. 

Q. How many were they there ? 

A. I didn't see but six. 

Q. All have disguises on ? 

A. Yes, sir. 

Cross- Examination by Mr. Stanhery. 

Q. Did you kubw any of them in their disguise ? 

A. Well, sir, I did. 

Q. You did know ? 

A. I did know. 

Q. How could you tell, if they were disguised ? 

A. I saw the men's hands, shoes, clothing, everything they had on. 

Q. Did you know the men ? 

A. One was Dr. Parker. 

Q. Who was the other ? 

A. Was Mr. John James MiAer. 

Q. The other? 

A. John Lytle. 

Q. Wlio was the other ? " 

A. The other one was Mr. Bill Lowrey, 

Q,. Who was the other ? 



286 

A. Now the other man — I believe there were more — but will not swear 
to that man. I believe they were there. 
Q. I only ask who you knew were there ? 

A. I won't be positive that these men were there ; and that was Mr. 
Bishop Sandifer and Mr. Thomasson ; but the other men, I did not say I 
knew them two men, but these other four, I know them ; there were sis 
altogether. 

Q,. And you told four of the six, notwithstanding they were disguised? 
A. I knew four of them out of tlie six. 
Q. How were they disguised ? 

A. Well, they had a little cloth over tlie head that came down and 
fastened back of the head. They had on common coats. This one 
had on a calico dress, the other one had on a red dress opened down be- 
fore ; the other had on looked like black overcoats, came way down here, 
[indicating below the knee.] 
Q. Had they false faces ? 

A. Well, they first had simply a false face, made to cover over the 
head, eyes and nose, and all the mouth was out, just a place where they 
could see, you know. 
Q. It was cloth ? 
A. Yes, sir. 

Q. All the head, and the eyes, and the nose, everything, and the face 
was concealed, but the mouth; ^but you told four of them because you 
saw their underclothing ? 
A. Yes, sir. 

Q. Y^'ou told it from their shoes, and saw their underclothing? 
A. I knew their hands, and I knew the men by their conversation. I 
got a full understanding of their voices. 
Q. How far did they live from you ? 

A. Mr. Miller lived about three mile and a half, or four mile, I will 
say, at the outside. 

Q. How far did either of the others live from you ? 
A. Dr. Parker lived about three miles from me, or a little better. 
Q. How far did the other live ? 

A. Mr. Lytic lived about a mile and a half from me. 
Q. How far did the fourth live? 

A. Mr. Lowrey lived on the same plantation, about two miles. 
Q. Now you told them by their hands, as well as by their undercloth- 
ing? / 
A. Y''es, sir. 

Q. Plow can you be so familiar with their liands ? 
A. I know Mr. Lowrey by his hands ; I've been working with hira ; 
h3 had been with me the day before. 



287 

Q. What sort of a liand has he? 

A. He has a white hand, but has a finger that stands crooked ; and he 
had sores on his hands, and that is the way I knew him. 

Q. Did each of the other three have fingers of that'sort, and sores ou 
their hands? 

A. No, sir. 

Q. How did you know their hands ? 

A. I knew the men by their discourse ; I knew them by their hands 
and by their discourse; I didn't say I knew them all by their hands ; by 
their hands I knew two of them. 

Q. You knew one by his hands? 

A. Yes, sir, I went into this thing when they came to my house ; they 
said they had risen from the dead ; I w'anted to see what sort of men 
they was ; I went a purpose to see who they was ; whether they were 
spirits, or whether they were human ; but when I came to find out, they 
was men like me, 

. Q. They told you they would come ; back unless you published a card 
they told you to publish, renouncing Radicalism, and so forth, they would 
come back and pay you another visit ? 

A. Yes, sir. 

Q. Well, did they? 

A. No, sir ; they did not. 

Q. They all lived in that neighborhood ? 

A. Yes, sir. 

Q. Did you publish the card? 

A. No, sir ; I didn't. 

Q. No such card was published, then ? 

A. Not by me. 

Q. Was there a grog shop near your house ? 

A. There was ; three miles from where I lived. 

Q. Do you know this man on trial now? 

A. I don't know him, as I know of. 

Q. Could you tell him by his hand ? 

A. I know he is a man ; that is all I know about him. 

Q. Tell the jury whether you know him? 

A. li^ I had been accustomed to that man, and known what suit of 
clothing he wore, and known his voice — I knew those other men's voices — 
I could tell more about them; but just fetch out a stranger — I can't tell 
anything about it. 

Q. .Cut answer my question, whether you recognized this man as one 
of the men who was at your house ? 

A. No, sir ; I don't recognize him as one of them. 



288 
Re-Direct Examination. 

Q. Did tliey use tlie Avord Ku Klux? did tliev call themselves Ku 
Klux? 

A. I dou't mind them saying anything about that. 

Q. You understood them to be Ku Klux ? 

Mr. Johnson. That will not do. 

The Court. Oh ! no. 

Mr. Corbin. I think we will stop .here, if the Court please. 

Mr. Johnson. Now, we want to know, may it please your Honors, 
whether they have stopped, not whether they thiijik they have stopped. 

The Court. We will understand that they have stopped. 

testi:mo::y of mrs. julia kainey. 

Mrs. Julia Raiuey, a witness for the defense, being duly svrorn, testi- 
fied as follows: 

Direct Exaynination by J/r. Slanhery. 

Q. Do you reside in York County ? 

A. Just over the line. 

Q. Do you know this man, Captain Jim Raiuey ? 

A. I do. 

Q. How far did this man, Jim Rainey, live from you ? 

A, Two miles. 

Q. How long have you known him ? 

A. Twelve years. 

Q. I believe he was a servant in the family? 

A. Belonged to my husband. 

Q. To wh'at? 

Judge Bond. He was her former slave. 

A. My former slave. 

Q. He has been in that neighborhood for the last four or five years ? 

A. Yes, sir ; except one year absent. 

Q. Whjtt was his official position in the neighborhood ? 

A. When? 

Q. Wh}' recently — ;just before his death ? 

A. Captain of a militia company. 

Q. Was this company armed ? 

A. Yes, sir. 

Q. Did you have a»y occasion to see the members of it after ? 

A. Occasionally. 

Q. "Well, first state, Mrs. Rainey, in reference to that company— state 



239 

what was its conduct and character in the neighborhood? as, also, of i(s 
captain ? 

A. Well, sir, that company caused a great deal of disturbance and un- 
easiness generally ; they were under his control entirely, and they were 
not very orderly managed ; he had been absent one year with Sherman's 
army ; he left that and came up to Chester ; he went off and told me on his 
return ; he came in, wheu he returned, to sse liis old master, my hus- 
band ; he told us he had been absent one year in Sherman's army — that 
he had been in the army ; and that was the principal part of that con- 
versation. Then he was elected captain of this militia company, and re- 
mained a captain, I suppose, nearly a year ; their conduct was disturb- 
ing, indeed ; they had begun to alarm the whole country ; I knew 
him very well — having belonged to my husband — and my husband 
treated him very kindly, retaining all the old family ; and, living immedi- 
ately on the York Road, between his house and Chester, he always felt 
at liberty to enter my kitchen at any time to see the old family servants ; 
there was always a great deal of politeness between us, and, therefore, sav/ 
and heard a great deal of him ; and his threats became very dangerous, in- 
deed ; indeed,. sir, for two months before his death, I suppose he ave- 
raged twice a week in my kitchen, passing backwards and forwards to 
Chester ; I did not know his business, but it was something very urgent, 
and seemed to be disturbing the neighborhood, generally ; his threats 
were very common to me — through the servants ; I never heard him my- 
self. 

Mr. Corbin. Well, I don't think, "if the Court pleases, this sort of tes- 
timony will do. 

Witness. I heard it through my family servants. 

The Court. That won't do, sir. 

Yfitness. I was just saying that the feeling in the country had become 
very alarming — that was the condition of the country. 

Q. State what w^as the conduct of those armed men under his control 
in the neighborhood? 

A. Very boisterous. 

Q. Did they pass your house frequently ? 
' A. Not mine ; they passed up towards Yorkville. 

!Mr. Corbin. Testify as to what you know yourself. 

AYitness. Well, ask me questions, and I will answer you. 

Q. What was the character of the disorder that those men commit- 
ted? 

A. I saw nothing, sir, with my own eyes. 

Q. Was it a frequent occurrence ? '•'' 

The Court. That is a leading question. 

19 



290 

Q. "Were there any fires in your neigliborliood previous to the dsath 
of this man '? 

A. Yes. 

Q. How long previous to his death ? 

A. Some two or three months. 

Q. Yv''ere those fires committed by incendiaries ? have you reason to be- 
lieve ? 

The Court. Oh ! that will not do. 

Mr. Corbiu. Ask her who committed this burning, if you want to. 

Q. Do you know, Mrs. Rainey, who committed those acts, or what was 
the character of the act ? 

A. It was of the incendiary. 

Q. It was? 

A. It was. 

Mr. Corbin. What fire v\-as that ? 

A. The burning of my own sin house. 

Q. Was any other property consumed witli it ? 

A. Twenty-five bales of cotton. 

Q. What time did that occur ? 

A. The 13th day of December. 

Q. Of last year? 

A. Yes, sir. 

Q. Had you heard of any raids by the white prople in that neighbor- 
hood, or in that part of the country previous to that ? 

A, No, sir. 

Q. Were there any acts of ^disorder committed there, of a simiual char- 
acter, that you know of? 

A. Not that -I know of 

Q,. Have you any facts in your knowlege that will direct you as to the 
persons committing these incendiary fires, or the character of persons ? 

A. What did you ask ? 

Q,. Are any facts within your knowledge that leads 3'ou to determine 
the class of persons ? 

A. Yes, sir. 

jNIr. Corbin. Tell us what the threats are ? 

A. Threats Was made to a white man. 

The Court. That wi'U not do. 

Witness. The threats were heai'd to be made to burn it before they left 
the gin house that evening? 

The Court. Did you hear them? 

A^No, sir. 

The Court. That will not do, gentlemen. 

Q. Do you know that in point of fact; there were a great many fires ? 



291 

A. Yes, sir ; a great mau}'. 

Q. Do you kno-iv whether people in that neighborhood were iu a state 
of alarm ? 

A. They were. 

Q. Alarmed about what ? 

A. Alarmed by fires. * 

Q. Any other cause of alarm ? 

A. Until later — until just before Jim was hung. 

Q. Wha;t was the cause of the alarm later ? 

A. The disorderly conduct of the militia. 

Q. How did they cause alarm ; what alarm did they produce ? 

Mr. Corbin. I would like to knov>' if she knew any disorderly conduct 
herself? 

Q. "Well, in point of fact, madame, was there an alarm in the neigh- 
borhood ? 

A. There was, sir. 

Q. Alarm for what ; what were they afraid of? 

A. They were afraid of an attack of the negroes. 

Q. Did you participate in that alarm ? 

A. I did, sir. 

Q,. What did you do in consequence of it to promote your own 
safety ? 

A." I left. 

Q. Left what? 

A. The neighborhood. 

Q. Where did you go ? 

A. To my father's. 

Q. Where is that? 

A. In Union District. • 

Q. You were so alarmed by the state of things existing there, that you 
left your o\ra house, and went into another County; what were you afraid 
of? 

A. I was afraid of having my house burned. 

Cross- Examination by Mr. Corbin. 

Q,. Did you ever hear that Jim Y>'"illiams made any threats at all ? 

A. I did not. 

Q. And never saw his company near the house ? 

A. Yes, sir ; often in the night. 

The Court, at 4 o'clock, adjourned until 11 o'clock, Thursday morn- 



292 

CoLr:.iBiA, December 14, 1871. 

TESTIMONY OF JOHX A. MOEOSO. 

John A. Moroso, a witness for the defense, being dulj' sworn, testified 
as fi)iio'\¥S : 

Direct Exavxinaiion by 2L\ Sfanhery. 

Q,. State where you reside ? 

A. Charleston. 

Q. "What was your occupation in the fall of 1870 ? 

A. I was editor of the Charleston Courier. 

Q. You were on the corps of the paper ? 

A. Yes, sir. 

Q. Had you any occasion, during that canvass, to visit various parts 
of the country and precincts? 

A. Yes, sir. . 

Q. For what purpose ? 

A. For the purpose of reporting the progress of the canvass for our 
paper, the Charleston Courier. 

Q. Do you mean reporting speeches that were made during the can- 
vass ? 

A. Yes, sir ; and writing letters describing the state of the country. 

Q,. In the course of these journeyings, had you occasion to visit York- 
ville ? 

A. Yes. sir ; I was in Yorkville, and a greater part of York County. 

Q. What other places than Yorkville were you at ? 

A. I was at Chester ; I traveled by buggy from Yorkville to Lands- 
ford, a place on the Catawba Eiver, on the borders of York County ; 
the river divides York and Lancaster ; I was also at Rock Hill, on the 
Charlotte, Columbia and Augusta Eoad. 

Q, How long was this before the election ? 

A. Ab6ut a month or six weeks previous to the election of 1870. 

Q. At that election, did they vote for members of Congress? 

A. Yes, sir; members of Congress and State officers. 

Q. Do you say you traveled through this County and surrounding 
country ? 

A. Yes, sir. 

Q. Was there any violence or outrages of any sort ? 

The Court. That will not do, unless you bring it home to the know- 
ledge of these defendants. ^ 

jMr. Stanbery. Bring what borne? 

The Court. The knowledge ; if any conspiracy was formed to stop 



293 

these burnings, you must bring that home to the knowledge of the de- 
fendants. 

Mr. Corbiu. We object to this cxaminaLion on account of its irrele- 
vancy. 

Mr. Staubery. We were about showing that there Avas a state of order. 

The Court. Well, then, go on. 

Mr. Stanbery. I was going on, when your Honor interrupted me. 

Q. What was the condition of things at Yoi'kville when you passed 
through there ; and did -you see any violence ; and, if so, what was it ? 

A. The only condition of things of which I know anything >vas at 
the time of the canvass ; meetings' were held at Yorkville ; a meeting 
of Reformers was advertised to be held there, at which I Avas not 
present ; I was present at Yorkville three days, and during that time 
there Avas a great deal of excitement, caused, it • seemed to me, the 
da}^ before the meeting, by reports of the negro militia coming into 
tOAvn ; on the morning of the meeting I saAv five militiamen, armed 
Avith Winchester rifles ; they were State Constables ; they came gallop- 
ing into toAvn before the meeting was called ; they proceeded doAvn the 
street to a place called the militia headquarters, Avhere, I understood, 
their arras Avere kept; at this place there was a kettle and a bass drum, 
and two men were employed to keep these drums going ; the Reform 
meeting was held at the court house, about fifty )''ards fi'om this place ; 
these men, Avho afterwards dismounted, some of whom I afterAvards re- 
cognized as speakers ; they collected a crowd, and they kept up a noise 
at the meeting of tlie Reformers, Avhi<3h Avas held within ear-shot ; the ex- 
citement Avas caused by the noise they made, and I heard Avhite people 
expressing much anger at the attempted interruption. 

Q,. Were speeclies made by Avhat was called Reform candidates ?, 

A. Yes, sir ; also by Mr. Walhice, the Radical member, Avho Avas in- 
vited to speak. 

Q. Was it a Reform meeting ? 

A. Yes, sir. 

Q,. Who Avere the Reform speakers ? 

A. Judge Carpenter was there ; I don't remember whether General 
Butler was there or not. 

Q. You said Judge Carpenter Avas there ? 

A, Yes, sir ; he Avas the candidate for Governor on the Reform ticket ; 
so that his ticket was in opposition to the Republican ticket. 

Q. AVas it the only ticket in opposition to the Republican one ? 

A. Yes, sir. 

Q. Judge Carpenter being a candidate, Avas there to speak, was he ? 

A. Yes, sir ; and did speak. 

Q.- Who made the first speech? 



294 

A. A. S. "Wallace, I think, bnt am not quite certain. 

Q. How long did he speak ? 

A. He spoke for some time. 

Q. Who followed him ? 

A. I cannot tell exactly, without reference to my letters. 

Q. What time was the meeting broken up in consequence of this drum 
beating ? 

A. It was after Mr. Wallace finished speaking that the meeting was 
broken up, in consequence of the noise of this drtim beating, and a riot 
was imminent ; how it was prevented, I do not know. 

Q. You say Mr. Wallace had spoken before the noise commenced. 

A. Yes, sir. 

Q. Do you recollect the next speaker, and whether he was on the Re- 
form side or not ? 

A. When Judge Carpenter began to speak, the uproar became grea-test; 
the uproar was so great that he could ncft be heard ; it was great, not only 
in consequence of the drum beating, but I noticed that when any colored 
people would stray across to the Reform meeting, these Constables would 
send out men to bring them in. 

Q. You say that as the colored people come up within hearing, these 
parties would send out skirmishes to bring them back? 

A. Yes, sir. 

O. Did that occur more than once ? 

A. Yes ; during the whole of the meeting. 

Q. You say a riot seemed to be imminent ? 

A. Yes, sir ; in consequence of the interruption of the Reform meet- 
ing. 

Q. Did you hear the language that was used ? 

A. I heard language, but I am not able to testify what it was. 

Q. Had any of these men from the barracks arms at the meeting ? 

A. Not at the time of the meeting ; they were galloping through the 
streets in the morning. 

Q. Did you hear what was said by them ? Did you judge that a riot 
was imminent, by their gestures ? 

A. No, sir ; I cannot testify as to the substance. 

Q. Can you give us the substance of what was said ? Were you 
under the impression that the language used was to incite a riot ? 

A. Yes, sir. 

Mr. Corbin. I want to know the significance of this testimony; if 
they intend to show that this was a meeting of the" Ku Klnx Klan, 
we have nothing to say ; but, if 'they don't propose to show that the 
Khin was present, I do not see the relevancy. 



295 

Q. State ^vhether, in tliat portion of the country, you were present at 
any other meetings ? 

A. I was also present at the meeting at Rock Hill, 

Q. Is that one of the voting precincts of that County ? Were 
speeches advertised to be made by Eeform candidates at the meeting ? 

A. Yes, sir. 

Q. Were the candidates there ? 

A. Yes, sir. 

Q. Was there an attendance of people to hear them ? 

A. Yes, sir ; a large attendance. 

Q. What time did they open the meeting ? 

A. About 11 o'clock in the morning. 

Q,. Who was present ? 

A. Judge Carpenter, Gen. Butler and Col. McKissick. 

Q. Had you seen any excitement or disturbance before the meeting ? ■ 

A. No, sir ; not at that precinct. 

Q. Who made the first speech ? 

A. Col. McKissick. 

Q. Who made the next speech ? 

A. Gen. Butler ; and Judge Carpenter the third. I do not desire to 
be taken down as stating this positively. 

Q. During these speeches, what took place ? 

A. Nothing of any consequence, that I know. 

Q. Was it quiet there ? 

A. Yes, sir. 

Q. Were they allowed to speak ? 

A. Yes, sir. 

Q. Now, what was your next place ? 

A. Previous to that I had been to Chester Court House, where there 
was some disturbance. 

Q. How far is that from Ybrkville ? 

A. Ten or twelve miles, I think ; but I'm only judging from the time 
it took me to go from Chester to York. 

Q. What took place at that meeting ? 

A. There was a big row. 

Mr. Corbin. I fail to see the relevancy or pertinency of this testimony 
to the issue ; I am willing that the counsel for the defense shall have any 
amount of latitude ; I understand the issue in this case is, whether these 
parties banded together a conspiracy to prevent divers persons of African 
descent from the privilege of voting; we have confined our testimony 
to that issue ; now, in reply, we are having a newspaper reporter on the 
stand, and I suspect, from the names of witnesses that have been fur- 



296 

nislied, we shall have the speakers themsc^lves, who participated iu the 
State campaign. 

Mr. Staubery. Your Honors will acquit me of any idea or intention of 
endeavoring to introduce anything immaterial when delay is of such 
great inconvenience to me ; it is not my way of trying a case. 

The Court. The witness must be confined to material matter. 

Mr. Stanbery. We are endeavoring to show that there was no sort of 
intention to interfei'C with the elective or voting franchise, which is the 
thing in controversy ; arms were put into the hands of colored 
people — not of colored people generally — but of colored Radicals, 
or Republicans, as they were called, in their particular District; we 
shalL show that nobody had interfered with the right of voting, 
and that the only interference with the exercise of that right was by 
themselves. We will show that this political meeting, got up by the 
Reform party, was constantly interrupted by them, and that the speak- 
ers were put down and assaulted. We expect to show that there was 
not only the noise of kettle and bass drums — not merely a noisy demonstra- 
tion — but also that these outside parties, who belonged to the other party, 
were determined to put down the right of free speech by noisy demon- 
strations, dangerous assaults, hurliug stones at them, and putting their 
lives in jeopardy, and preventing the candida^te himself from addressing 
his own party. Our object is to show that there was interference with 
elective franchise ; that this Reform party — the party in the field — were 
prevented from the exercise of their right by assaults on the speakers 
and interference with the actual business of voting. It will be for us to 
show that the chief of these militia men was a dangerous character, and 
a violent man ; that he commanded this comyany, and had a formidable 
force under liim, armed with the best arms of the day, in an inoffensive 
community, interrupting other men's voting, in a neighborhood where 
nothing like Ku Klux had ever heen seen ; that these men had arms, 
and the most approved ammunition ; and that he was constantly drilling 
them as if he were preparing them for war ; that he had been a soldier 
in the army of Sherman ; that he drilled his men, and threatened, again 
and again, injuries to the whites, threatening, on an occasion, that they 
should be destroyed from the cradle to the grave ; that he came to be re- 
garded in the community as an outlaw and a dangerous man, and that 
his threats, becoming so violent and intimidating, the people saw there 
was nothing left but to disarm him, and put it out of his power to follow 
out his evil intention ; that this was the state of alarm and intimidation 
in that community, not only on the part of the colored people, but on 
the part of the whites. We intend to show that, in going upon this raid, 
this man liad no idea of interfering with any man's voting privileges ; 
but that he went there, in the society of others, to get arms out of the 



297 

bauds of men commanded by such a captain as that, and who were 
wholly under his command, and who followed him implicitly ; he was 
the loading spirit, and it was considered wholly unsafe that that man 
should have the means of carrying out these threats ; and that such was 
the condition of things that, not only women, but men v/ere alarmed. 

The Court. What was done at these political meetings throughout the 
country has no relation to this conspiracy ; the present is a charge of 
conspiracy. , 

Mr. Staiibery. We are charged Avith interfering with the elective fran- 
chise, and now we wish to prove the fact that there was no interfering 
with the franchise, or at the meetings. 

The Court. You may show that there was no disturbance at the polls. 

Mr. Stanbery. The next thing is to shov/ that there was no disturbance 
at the meetings — and the election always begins at the preliminary meet- 
ing ; and we wish to show that there was not the slightest disturbance on 
our part ; and all that there was, came from the other side. 

Mr. Corbin. These parties arV charged with entering into this conspi- 
racy in March, nearly six mo*nths after the canvass to which this dis- 
turbance refers. We do not charge, and have never attempted to prove, 
on our side, that these parties did interfere vrith the elective franchise at 
the election of 1870. 

Mr. Stanbery. Does the gentleman say that he limits himself to the 
conspiracy commenced on the 8th of March. 

Mr. Corbin. It existed on the 8th of March. 

Mr. Stanbery. Then it refers baok ; have we not that testimony rela- 
ting to tlae conspiracy as far back as 1868 ; but the conspiracy the gen- 
tleman relies on — the formation of this Klan — took place long before, so 
that it is during the time; the gentleman relied upon that,; he says we 
were interfering with the right to vote ; I don't know how to answer this 
proof, except by testimony like this, to show that instead of interfering 
with the right to vote, and being in conspiracy of that kind, there was not 
a single instance in which the right of a Republican, or Radical, colored 
man was interfered with ; there were interferences, but they came en- 
tirely from the other side ; it seems important to us to show that the 
elections were quiet and orderly. 

The Court. We have no objection that. 

Mr. Chamberlain. How is it possible that any interference with any 
political meetings held in August, 1870, can negative the charges in this 
indictment ; the testimony is not relevant unless it is to negative some 
charge against them ; anything that the defense can show, or any acts 
or declarations of the Ku Klux, to negative what we have proved, would 
be legitimate evidence. 

The Court. If the Reform party, or any other party, are shown to be 



298 

idsutical with the Ku Klux, this line of defense would be legitimate ; but 
how is it legitimate to meet the charges that have beeu made against the 
Ku Khix to prove the acts of Republicans or Reformers in a political 
campaign. What do }' ou propose to ask ? 

Mr. Stanbery. What took place in the way of interference at that meet- 
ing. 

The Court. Were your parties there ? 

jMr. Stanbery. I do not know. 
I The Court. What pertinency has that with the conspiracy ? 

Mr. Stanbery. Whether they were or not, there was no interference 
with the voting franchise; we can trace every election around there and 
shovv^ that there was no interruption, so that this conspiracy to interrupt 
and interfere with the voting franchise is absolutely contradicted by the 
facts. 

The Court. How does it go to negative the fact that a man committed 
an ofiense on Monday by showing that he was quiet on Tuesday. 

Mr. Stanbery. We show by evidence that he was quiet all the time ; 
that he Avas not given to any such violence as that ; we are going upon 
the field of presumption, that there was no intention to interfere with the 
right of the voter, because no acts of that kind have transpired from first 
to last, and if this is not a material fact on which to rest a presumption 
against this pretended proof of conspiracy, I do not know what it is. 

Mr. Chamberlain. The only parties involved in the first or second 
counts are these defendants, or the parties belonging to the organization 
known as the Ku Klux Klan ; now of what avail is it to tell us of the 
conduct of a crowd who assembled at Yorkville to listen to political 
speeches, unless there is something to indicate that they were members of 
the Ku Klux, or that this defendant was there and did something. If 
the Ku Klux were there, and the gentleman could show they behaved 
themselves and allowed the negroej to vote, they would connect it with 
this organization which we are seeking to ferret out. Without that, it 
has no possible connection or revelancy. I repeat that the only parties that 
can be affected by this are those connected v.ith this organization which 
we have charged as existing in the first count, or with this defendant, v/hom 
Ave haA'e charged Avith interferring with Jim Williams. If anybody an- 
swering the description of a member of this organization, or the party 
.AvhoAvent on Jim Williams' raid, were then at McConnellsville or Chester, 
and behaved themselves well, that might be evidence ; but is there any- 
thing to shoAV that ? Of course, the gentlemen do not intend to show 
that this defendant belonged to the organization which went upon the 
Jim Williams' raid, and that that was the same organization that listened 
to Judge Carpenter's speech ; then hoAV does it negatiA^e any evidence as 
to the purpose of this organization, or the acts of the parties who Avent on 



299 

the Jim Williams' raid ? If they vdll admit that they were Ku Klux, 
and went to that meeting and behaved themselves, and did not interfere, 
it might go to negative what w'e have established as to the purpose of this 
organization. 

The Court. It is competent to prove in general that there was no' in- 
terference at such elections as those parties w'ere present at. 

Mr. Chamberlain. We are not indicting the whole community, but cer- 
tain defendants, and the general conduct of the community is not the 
issue. 

Q. Were you present at any elections held in that pra-t of the 
County ? 

A. No, sir. 

Cross-examination by Mr. Cliamberlavn. 

Q. You stated that there was a good dea,l of excitement in Yorkville, 
on the occasion of that meeting, on account of the negro militia ? 

A. Yes, sir. 

Q. Did you see any negro militia on that day ? 

A. I do not know that I stated that I did. I stated there was consid- 
erable excitement in consequence of the colored people gathering at the 
place where the militia arms were kept. 

Q. Did you not testify, that there was considerable excitement on ac-- 
count of the negro militia? 

A. There was considerable excitement at the meeting. 

Q. Had it anything to do with Jtm Williams' company on that occa- 
sion ? 

Q,. (by Mr. Stanbery.) I understood you to say there was alarm 
throughout the country ? 

A. When I passed throi'igh that County, they were in great alarm 
about the militia who were armed, and parading about the country at 
that time ; that was the impression on all sides, and they Avere in a great 
state of alarm. 

Q. Do you say they were in a great state of excitement on account of 
the negro militia ? 

A. I say they were in a great state of alarm throughout the coun- 
try. 

Q. Was this excitement at Yorkville in consequence of the colored 
militia? 

A. I saw no negro militia at Yorkville ; the excitement there seemed 
to be in consequence of the Constabulary to gather up the militia, and 
the excitement seemed to be created by that fact ; the impression con- 
veyed to my mind was that these men came there early in the morning, 
I think it was in August, directly after the meeting at Chester. 



300 

Q. It was, however, in August that you were at Yorkville ? 
A. I think so. 

Q. Do you remeiuber the date of the meetiug at Chester ? 
A. I do uot remember. 

TESTIMONY OF EICIIAED B. CAItrENTER. 

Richard B. Carpenter, a witness for the defense, being duly sworu, tes- 
tified as follows : 

Direct-Examination by Mr. Stanhery. 

Q. Were you a candidate at the last fall election for office ? 

A. Yes, sir ; for Governor of the State. 

Q. Did you, in the course of your travels throughout the State, visit 
that part of the country about Yorkville and Chester ? 

A. I did, sir. 
* Q. What season of the year were you there ? 

A. I am not certain whether it was August or September of 1870 ; I 
think it was the latter part of August or the early part of Septem- 
ber. 

Q. Do you know the fact vrhether it was before or after the militia 
companies had been organized and armed in that part of the country? 
. A. It was after — at least many companies had- been armed. 

Q. Do you know whether or not there was a state of anxiety and 
alarm on the part of the people in consequence of this fact? 

A. Yes, sir; there was a good deal of feeling about it, and a good deal 
of anxiety with some of the people, and a good deal of alarm. 

Q. What was the cause, and what was the nature of the alarm ? 

A. The armed companies of militia throughout • the countr}'-, with 
ammunition distributed, as was understood, as if on the eve of battle. 

Q. Was this alarm confined to a few, or did it seem to be general ? 

A. There was a good deal of talk about it ; I do not think the white 
people were, as a general thing, alarmed ; it seemed to have more terror 
to the colored people than the whites, in that country. 

Q. Do you say the colored people were alarmed ? 

A. Yes, sir ; because some were armed and some were uot. 

Q,. Were the colored people alarmed because a part were arm-ed and 
a part were not ? 

A. Yes, sir; I suppose those not armed were more alai*med, without 
doubt; there was a good deal of alarm, more or less, among all classes 
of people — white and colored. 

Q,. Among the colored people, which part w-as most alarmed ? 

A. Of course — the Conservative colored people were very much 
alavnifed. 



301- 

Q. Was it understood that those wlio were armed all belonged to one 
party ? 

A. That was the general understanding. 

Q. What party was that ? 

A. The party supporting the then and present State dynastv. 

Q. That is tlio Radical or Ilepublicau party ; what was the party with 
which you were connected called ? 

A. It was called the Reform party ; the name had no national signifi- 
cance. 

Q,. Reform of what? 

A. It was a party for the reform of the State Government ; men of all 
political parties belonged to it ; and its object was the reform of the 
State Government. 

Q. Which party was in power in the State Government ? 

A. The Radical party was in. 

Q,. And it was proposed to reform the party in power? 

A. It was not proposed to reform that ; it was conceived by the gentle- 
men, whg acted with me, that they were a long way beyond reform. 

Q. It was to put other persons in their places? 

A. Yes, sir ; that was the idea. 

TESTIMONY OF BILL LINDSAY. 

Bill Lindsay, a witness for the defense, being duly sworn, testified as 
follows : 

Direct Examination by Mr. Stanhery. 

Q. Whereabouts do you live in York District ? 

A. On the lower edge. 

Q. How far did you live from Jim Williams' ? 

A. Three miles and a half. 

Q. Did you know him ? 

A. Yes, sir. 

Q. For how long ? 

A. About four or five years. 

Q. Did you know anything about his having a militia company? 

A. Yes, sir. 

Q. Did you know any members of it ? 

A. I knew some of them. 

Q. Who was the captain ? 

A. Jim Williams was captain. 

Q. When was that company formed ? 

A. Last year, sir. 



302 

Q. "What time ? 
A. I don't knov; what time. 
. Q. Wlien it was first formed, had they any muskets or arms ? 
A, Iso, sir. 

Q. ' IIoV)' long after the company was first formed did they get 
arms ? 

A, It was about two months. 

■ Q. After they had arms, did they muster with their arms ? 
A. Yes, sir. 

Q. Do you know if tliey had any ammunition ? 
A. Yes, sir ; they got some after they had tlieir arms. 
Q. At what point was it that ammunition was distributed to the men ? 
A. Allen Bratton went to York and got the ammunition and took it 
out there. 

Q, What kind of ammunition was it ? 

A. Cartridges. 

Q. Was Bratton a member of the company ? 

A. Yes, sir ; he was Lieutenant. 

Q. By whose orders did he get ammunition ? 

A. He got it from Mr. Rose, at York. 

O. Who sent him there to get it ? 

A. I think Williams au'd Tims. 

Q. How many rounds did each man get? 

■ A. About three at first. 

Q. What time was it they got ammunition ? 
A. It was in the night ; they went over in the night. ' 
Q. Was that before the election or after ? 
A. It was before the election. 

Q. Did they mostly muster in the day or the night ? 
A. They mustered mostly at night. 

Q. Did they keep on mustering up to the time of the election ? 
A- Yes, sir. 
Q. How often ? 

A. Sometimes once, and sometimes twice a week. 
Q. Did you ever have any conversation with Jim Williams about get- 
ting ammunition ? 
A. Yes, sir. 
Q. When was it ? 

A. He told me he was going to get ammunition from York. 
Q. What further did he say ? 
A. That he was going to kill from the cradle up. 
Q. When was that ? 
A. That was Friday after we went to pay taxes, Friday before March. 



Q. Where were yoii going to pay taxes ? 

A. At York. 

Q. Where did you meet together ? 

A, He came right up to my house. 

Q. Did you go to York oa foot or on horseback ? 

A. On horseback. 

Q. Did this conversation talce place on the road ? 

A. Yes, sir. 

Q. Did he get any ammunition that day ? 

A. I don't think he got any that day. 

Q. When you say Friday before March, do you mean the March when 
he was killed ? 

A. Yes, sir. 

Q. Do you know whether in that part of the country such threats 
were made by Williams as you have spoken of? 

A. Yes, sir ; there were. 

Q,. Who do you say it was that made these threats ? 

A. Jim Williams. 

Q. What other people spoke of having heard him make this threat ? 

A. Michael JMcCali said so. 

Q. Did you hear other people speak of it ? 

A. Yes, sir. 

Q. Yv^as it a general thing ? 

A. I heard it from other folks that it was a general thing in this 
neighborhood. 

Q. Do you mean that people generally understood that Williams had 
made that threat ? 

A. Yes, sir. 

Q. Up to that time had there been any violence or raids of Ku Klux 
or anybody else ? 

A. None ; there hadn't been any through there at that time. 

Q. Had there been any violence at any election at that time ? 

A. No, sir. 

Q. Had you attended an}* election ? 

A.- Yes, sir ; at McConnellsville. 

Q. Is that the same place that Kainey attended '? 

A. Yes, sir. • 

Q. Was there any interference there ? 

A. Not as I know. 

Q. Yv^as there at any other election you have been at ? 

A. I have not been at any but there. 

Q. Do you cast your vote there ? 

A.' Yes, sir. 



304 

Q. Did ever anybody interfere with you ? 

A. No, sir. 

Q. Did anybody ever interfere with Rainey when he voted? 

A. Not as I know. 

Q. Is that the fall election that you speak of? 

A. Yes, sir. 

Q. (by Mr. Johnson). Do you know if there were any fires in that 
neighborhood up to that time ? 

The Court. We cannot allow but one person to examine a witness. 

Q. Had there been any fires in that part of the country ? 

A. Not by us ; there was a fire before, at Mr. Bratton's. 

Q. How far off did he live ? 

A. About half a milf^. 

Q. What was burned ? 

A. The gin house and threshing machine. 

Q. According to report, who burned them ? 

A. Jack Brooks did that. 

Q. Were there any other fires before that ? 
■ A, Not that I know of by us. 

Q. Was Brooks a colored man ? 

A. Yes, sir. 

Q. Did you hear of any outside of your part of the County, at York- 
viUe? 

A. Yes, sir ; I heard of that above Yorkville ; but none on this side. 

Q. Then you heard of a number of fires occurring about Yorkville? 

A. Yes, sir. 

Q. According to public report, who were supposed to be a party to it ? 

Question objected to, and withdrawn. 

Q. Were you at home on the night that Jim Williams Vwis hung ? 

A. Yes, sir. t 

Q. Did any party call at your house that night ? 

A. Yes, sir. 

Q. Who were they ? 

A. Ku Klux, they said. 

Q. Were they disguised ? 

A. No, sir; they just came natural. > 

Q. How many came to your house? 

A. Two. 

Q. AVhat did they do ? 

A. They asked me if there were any guns there. I said no. I told 
them I did not have any. I told them I had one old gun there. " Take 
it down," said they, " and hand it to the men outside." The man out- 
side hallooed: "It's a double-barrel gun ; give it back to him again." 



305 

Q. What kind of guns did tliey want ? 

A. The guns that had straps on them. ' 

Q. When you produced your squirrel rifle, they said they did not 
want that ? 

A. Yes, sir. 

Q. Did they say anything about voting ? 

A. Not a word. 

Q. Are you certain that this is tlie same night that Williams was 
hung? 

A. Yes, sir ; that was the same night. 

Q,. Did you see any more of them ? 

A. I saw them on the road. 

Q,. How many do you think there were on the road ? 

A. It looked like a great many — perhaps twenty or thirty. 

Q. Was there anybody else at your house that night ? 

A. Yes, sir. 

Q. Who else came there ? 

A. A militia party came up there. 

Q. How many of them were there ? 

A. About fifteen or tvv'enty. 

Q. What did they do ? 

A. The head man hallooed out to come out, quick. " Come out, quick," 
said he. I told him I was under no obligation to come out quick ; he 
said I must come out damned quick. They asked me if there had been 
any Ku Klux there ; then they asked which way they went. "Up the 
road," said I. " Slip on your shoes," said he. I said I had no right to 
go ; I didn't want to leave my home that time of night. " By God," 
said he, " you have to go or die." I told him that there v*^as but one 
time to die. That would be now, said he, if I didn't march. Henry 
Haynos then cocked his gun on me ; they then mounted the fence ; I 
was outside; they went back into the house, and one of' them took my 
gun and took it away ; they sent it back to me the next day. 

Q. Were they part of the colored militia who came ? 

A. Yes, sir. 

Q. Did you attend the same polis of election that any of these militia- 
men did ? 

A. Yes, sir ; at the same place. 

Q. Was it at McCounellsville ? 

A. Yes, sir. 

Q. Did this company, or any part of them, take their arms to the 
election ? 

A.. Not as I know of; they had their accoutrements. 

Q. Do you mean their bayonets ? 
20 



306 

A. Yes, sir. 

Q. What diii they do with their guns ? 

A. I don't know ; I v.'as driving a wagou till about four o'clock, when 
I went over there. 

Q. But you say they had their side-arms on ? 

A. Yes, sir ; they had their guns the night before, drilling ; that- was 
the night before the election that they Avere drilling. 

Q. Where was that ? 

A. Right there in Mr. Wallace's old field. 

Q. Do you know if any orders were given them as to what was to 
be done? 

A. I do not know. 

Q. Was tlie full company out that night? 

A. Yes, sir. 

Q. Did you see some of them at the election ? 

A. I seen some of them. 

Q. Were they in squads ? 

A. Yes, sir ; some seven or eight at a time ; in right smart squads. 

Q. Had they their side-arms on ? 

A. Yes, sir ; the whole of them. 

Q. You say you got -to the election late in the afternoon ? 

A. It was about four o'clock in the afternoon when I got there. 

Q. This house that was burned, did it belong to colored or white 
people ? 

A. I don't know which. 

Cross-Exammatlon by Mr. Corbin. 

Q. Are you known as " Gentleman Bill ?" 

A. Yes, sir. 

Q. Whose place do you live on ? 

A. John S. Bratton's. 
, Q,. You say that Jim Williams said on Friday before March that he 
was going to kill " from the cradle up ?" 

A. Yes, sir ; from the cradle up ; he did not say white or black.' 

Q. Did he say why he was going to do this ? 

A. Because they said he was to give up his arms. 

Q. Who said this ? 

A. Mr. Russell brought him down word to give up his arms; he said 
he did not mean to give them up, except by an order from Mr. Scott. 

Q,. Who was that — Governor Scott ? 

A. Yes, sir, 

Q. What was the reason he gave for " killing from the cradle up?" 

A. I do not know ; hj did not give nie any explanation. 



307 

Q. Do you think he would ? 

A. I don't think he could ; I know it was out of any man's power to 
do it. 

Q. Was he in fun when he said so ? 

A. Pie seemed to be in earnest when he said so. 

Q,, YV'^ho have you ever told that to ? 

A. I have told it to a heap of people. 

Q. Name some one to whom you told it ? 

A. I told it to Lowry ; I told l)im at the same time I told others. 

Q.. When was that ? 

A. AVhea I was on the road to York with him. 

Q. Was it before Williams was killed ? 

A. It w.is about ten days before. 

Q. Who else did you tell ? 

A. I told Major Wallace and Minor McConnell. 

Q. When was that ? 

A. When we were going to church, Sunday. 

Q. When was that ? 

A. The Sunday after Jim told me. 

Q. Who else? 

A. Ave Thompson ; that was after Jim was dead. 

Q. Anybody else ? 

A. I think that was all ; I may have told more, but I disremember 
whether I did or not. 

Q. Did Jim Williams say anything about the Ku Klux at that 
time ? 

A. Not at that time, to me. 

Q. Had you heard anything about the Ku Klux ? 

A. Yes, sir ; but they hadn't been in our town ; I heard they had 
been in the neighborhood; they hadn't been out this side of York, 
then. 

Q. Did you know of the colored people lying oui around there ? 

A. Yes, sir ; they went out about the church, and lay out ; I do not 
know what they were after. 

Q. Do you know that they laid out because they feared the Ku Klux 
Klan ? 

A. I do not think they did, then. 

Q. Did they lay out before the Ku Klux came, who murdered Wil- 
liams ? 

A. Not as I knovr of. 

Q. Did you ever lay out ? 

A. Never at night. 

Q,. Were you afraid of the Ku Klux ? 



308 

A. I was not ; no more scared than I am now. 

Q. What is your politics ? 

A. Do you mean when the Ku Klux came ? I had no politics when 
the Ku Klux came. 

Q,. What were your politics before that time ? 

A. We didn't have any politics before that. 

Q. Are you not a Democrat ? 

A. Yes, sir ; I'm a Democrat. 

Q. You vote the Democratic ticket ?• 
• A. Yes, sir; all the time. 

Q,. Why did you vote the Democrat ticket ? 

Mr. Johnson. What has that to do with the case ; but we have no ob- 
jection if the court has none. 

Q. You have always been a Democrat ? 

A. Yes, sir ; all the time. 

Q. You were not afraid of the Ku Klux, you say ? 

A. I was not a bit scared when they came there that night. 

Q. You didn't think they would hurt you, did you ? 

A. I didn't know whether they would or not ; I staid in the house. 

Q. They didn't ask you anything about your politics ? 

A. Not a bit. 

Q. You are pretty well knovvm in that country, are you not ? 

A. Yes, sir. 

Q. And your politics pretty well known ? 

A. Well, I think so, sir. 

Q. Did you hear other colored men around there talk of being afraid 
of the Ku Klux ? 

A. Yes, I heard them talk about it. 

Q. Who did yovi hear? 

A. Almost all in the neighborhood who lay out of their houses. 

Q. Did they ask you how they would be safe ? 

A. No, sir. 

Q. What did you tell them ? 

A. I did not tell them anything. 

Q. Didn't you tell them that if they would say that they would be 
Democrats that they would have no trouble? 

A. I never told them any such thing. 

Q,. You slept in your house while all the rest were sleeping out ? ' 
- A. Yes, sir ; all the time. 

Q. And felt perfectly safe ? 

A. Perfectly so ; trusted to Providence about that. 

Q,, Did you know of any other colored men who slept right around 
you in their houses all the time ? 



309 

A. I think Minor McConnell did. 

Q,. Is he a Democrat ? 

A. Yes, sir. 

Q. How about Dave Thompson ? 

A. I think he slept in his house all the time. 

Q. Is he a D :?mocrat ? 

A. Yes, sir. 

Q,. Do you know of any Republican colored men who slept iu their 
houses all the time ? 

A. No, sir ; I do not. 

Q. When was that fire at John S. Bratton's ? 

A. I disremember what time it was. I know it was this year. I dis- 
remember what time in the month, for I don't know. It was on a Sun- 
day night, though. 

Q. Was it this summer or fall ? 

A. This summer ; near about " laying by time." Laying by the crop. 

Q. Was it just before last Court at York ? 

A. Yes, sir. 

Q. Was the man tried at the Court there who was supposed to have 
done it ? 

A. Yes, sir. 

Q. What was his name? 

A. Jack Brooks. 

Q. Was he convicted ? 

A. Yes, sir. 

Q,. Who were the men that came to your house that night the Ku 
Klux visited you ? 

A. Andy Tims was one. 

Q. No, but of the Ku Klux? 

A. I don't know, sir; I don't know them. 

Q. They did not have any disguises on ? 

xV. No, sir ; they did not. 

Q. How do you know they were Ku Klux ? 

A. They said so ; asked if I ever seen any. I told them I did not ; 
said here they were. 

Q. What eke ? 

A. The way it first started they hallooed, " wake up nigger, w^ake up 
nigger, I am coming — open the door, open the door, God damn it, open 
the door." I was standing right by the door agin they got there. 

Q. Did j\Ir. J. S. Bratton tell you that the Ku Klux wouldn't disturb 
you ? 

A. No, sir ; didn't open his mouth to me about it no way. 

Q. Did he after this Jim Williams was hung tell you so ? 



310 

A. No, sir ; he did not. 

Q. Now, when Andy Tims, with his militiamen, came to your house 
that night, what did he want you to go "with him for ? 

A. Wanted to go help hunt the Ku Klux ; that is what he did. 

Q,. Pie didn't come to hurt you ? 

A. The intention looked like, -when he spoke — looked like he v/as more 
Ku Klux than they were. Told me I had to go or die. 

Q. Nobody shot you ? 

A. No, sir. 

Q. Nor shot at you ? 

A. No, sir ; one cocked a gun on me. 

Q. Andy -wanted to hunt up the Ku Klux ? 

A. That's what he said. 

Q. What for ? 

A. He didn't say, sir, to me, what for. 

Q. Did you know what the Ku Klux had been doing ? 

A. I heard what he said ; he didn't tell me then, but I heard after- 
wards, when I went over to the mill that day, what was done; they 
had hung Jim Williams. 

Q. Andy Tims was hunting tkem up ? 

A. That's what he said, sir. 

Q,. xind he took your gun ? 

A. Yes, sir; he took my gun. 

Q. Brought it back next day ? 

A. Yes, sir; brought it home next day; I wasn't home vrhcn he 
brought it ; but it was there when I came home. 

Q. Did you ever know Jim Williams to do anything bad in that 
community ? 

A. No, sir ; I did not. 

Q,. Good reputation ? 

A. Yes, sir ; as far as I knowed. 

TESTIMONY OF JAMES LONG. 

James Long, a witness for the defense, being duly sworn, testified as fol- 
lows : 

Direct Examination hy Mr. Stanhcry. 

Q,. Where do you reside ? 

A. In York. 

Q. How far from Jim "Williams' ? 

A. About five miles. 

Q. Did you know him ? 



311 

A. Yes, sir ; I knowed liirn. • 

Q. Have you talked v.-ith liim, and heard him talk ? 

A. I have talked many a time with him, and heard him talk. 

Q. Now state whether you had any conversation with him, or had 
any talk of this shortly before he was killed, and what it was ? 

A. I heard him talking, sir, at the blacksmith shop of Dr. Loves. 

Q. Were other parties there ? 

A, Yes, sir. 

Q. How many others ? 

A. Don't know^; the two men that worked in the' shop, and some 
three or four black men besides ; there was one white man, but I am 
not certain Avhether he was gone when we had this talk or not. 

Q. The blacksmith was there ? 

A. Yes, sir. 

Q. And his tv/o hands ? 

A. Yes, sir. 

Q. And some colored men ? 

A. Some colored men. 

Q. What did he say '/ 

A. Said he had been down here a little while before that. 

Q. Down where ? 

A. Down to Columbia ; been among the members of the Legislature; 
he said- they wasn't worth one damn, but only for drinking and gam- 
bling. 

Q. (by Mr. Corbin). Who ? 

A. Members of the Legislature ; and he said, as for Governor Scott 
and Neagle, they were both damned old rascals ; they had not done what 
they promised ; and he said that he had said to his men the other day, at 
the old field, at his muster ground, that he wanted them to come to the 
field, and the longest pole knocked the persimmon down, and the strong- 
est man eat them, and kill from the cradle up ; that is what he said, and 
he had as much sense as any damned white man in York District. 

Q. ^^'^hen you sjjeak about his men, what men did he refer to ? 

A. ^He did not name any names. 

Q. What did you understand him to refer to ? 

Mr. Corbin. No. 

A. He named no names, I thought it was his company. 

Mr. Corbin. You have no business to say that, 

Q. When was he going to do that ? 

A. He didn't say when ; he said he named to them that he wanted 
thera to do it — no time set particular. 

Q. Did he repeat what he said to them ? 



312 

A. He said that was what ho said at his muster ground the other 
day. 

Q. How long was that before his death ? 

A. Tliis was on the 4th of ]March, and I think it was about the Gth of 
March he Avas hung. 

Q. Well, sir, when you left them did you mention it to other per- 
sons ? 

A. I wasn't anywhere for several days ; I was talking about it after I 
went home, but I don't think I was away from home. 

Q. But you mentioned it at home ? 

A. Yes, sir. 

Q. How many persons are there about your hou?e who constitute your 
family ? 

A. There arc some four or five. 

Q. To whom you communicated? 

A. Yes, sir. 

Q. As soon as you went home ? 

A. I don't know as soon as I went home, but some time in the course 
of a day or two. 

Q. Had there been any violence or outbreaks in that part of the 
country at that time ? 

A. Well, there had been fears about their mustering and shootiifg; but 
I don't know any particular facts, no way. 

Q. Do you know who did the shooting? 

A. They were mustering at nights. 

Q. Did you hear shooting at nights ? 

A. Just regular. 

Q. Near your house ? 

A. Yes, sir; heard it clear to where I live. 

Q. Who was shooting? 

A. Well, I don't know who was shooting; might have been his com- 
pany ; might have been some others ; I can't say. 

Q. Do you mean — 

A, Every night or two ; and heard a drum, too. 

Q. Was there any alarm in your part of the country ? 

A. Folks were pretty much scared. 

Q. Whht about ? AVhat was the cause of alarm ? 

A. They did not know but wliat the niggers might come with their 
arms and kill them. 

Q. Was that pretty general among the vrhite people? 

A. It was, sir, in my neighborhood. 

Q. As to the women, were they frightened ? 

A. Yes, sir ; they were worse than the men. 



Q. Do you know of tlieir getting together up iu tliat neigliborliood ? 

A. No, sir ; I did not. 

Q. You know there was that state of alarm ? 

A. No, sir. 

Q. Do you know of any fires ? 

A. I know of some fires up above us ; some gin houses were burned. 

Q. How far above you ? 

A. About six miles. 

Q. Towards Yorkville ? 

A. No, sir ; rather to the right of Yorkville. 

Q. What fires? 

A. Nealy Miller's and Hugh Warren's gin houses were burned ; both 
tolerably close together ; not more than a mile apart. 

Q. What other? 

A. Well, I heard of Dr. Ellison having houses burned. 

Cross- Examination by Mr. C'orbin. 

Q,. How did Jim Williams come to tell you that he was going to kill 
from the cradle up ? 

A. Did not tell me; just told the folks that. 

Q. Who was he telling that to ? 

A. To these other niggers ; I was sitting outside of the house, by the 
side door. 

Q. Yf ho were there ? 

A. I don't know the names of the ether niggers — only two. 

Q. Name them? 

A. The men working in the shop named Jeff. Bratton, and the other 
one used to belong to a Bratton, too, by the name of Jim ; the other boys 
I didn't know. 

Q. What was Jim Williams talking about ? 

A. Well, I don't know what he was particular talking about before I 
came into that conversation. 

Q. You did not hear any of that ? 

A. Well, I heard him talking, but I didn't mind anything he was 
saying much, until he came to that. 

Q., Didn't you hear that he was saying if the Ku Klux came around 
about his men, that he would kill other persons ? 

A. No, sir ; I did not hear him say that. 

Q. Do you know whether he said that or not? 

A. I don't think he said it while I stayed. 

Q. Do you know ? 

A. I know he did not vvhile I stayed. 



314 

Q. And yet you didn't henr his conversation until he got to the place 
where he was going to " kill from, the cradle up ?'■" 

A. Never heard him say that. 

Q. But did you not have the conversation until ho came to that? 

A. iSTo, sir ; I said I didn't mind what he w'as saying. 

Q. How do you know but w^hat he said it? 

A. That was the first I heard him talking about fighting, or anything 
of the sort. 

Q. Do you know now, after your attention is called to the fact ? 

A. I did not say that I was there, 

Q. And, yet, did you hear all that he said wliile you vrere there? 

A. I did not say I heard all. 

Q. How do you know whether he said it or not ? 

A. Well, I think if he had said it I would have heard it. 

Q. But you don't recollect ? 

A. I do not, sir. 

Q. Anything except that he was going to kill from the cradle up ? 

A. Yes, sir ; I told you more than that. 

Q. You say you went home that night ? 

A. Yes, sir ; I went home before night — before twelve o'clock. 

Q. You mentioned it to your family ? 

A. Don't know as I did, that day, I told you. 

Q. When did you mention it? 

A. I cannot tell you exactly ; it might have been a day or two before 
I mentioned it. 

Q,. You were not very much frightened, then, about it? 

A. No sir ; I was no ways frightened myself about it. 

Q. You did not think there was any occasion for alarm? " 

A. I didn't know what there might be. 

Q. Well, but if yoi; had thought there was occasion for alarm, you 
would have spoken at once about it? 

A. Don't know whether I would or not ; I didn't th.ink of it. 

Q. If you had felt that your family and your neighbors were in dan- 
ger of being murdered, you would have told it, wouldn't you? 

A. Well, I might, or might not ; for I didn't think of it. 

Q. Did yoH ever hear of Jim Williams killing anybody ? 

A. Never heard of his killing any person in my life. 

Q. Did he have the reputation of being a man that would kill peo- 
ple? 

A. Well, folks talked so. 

Q. You never heard of his doing it ? 

A. Never heard of his murdering any person. 

Q. You say this was on the 4th of March ? 



315 

A. On the 4th of March. 

Q. And when was Jim killed ? 

A. On the 6th, I think. 

Q. Now, do you know whether you ever mentioned, to anybody what 
he said, until after he Vv'as killed ? 

A. I named it before he was killed. 

Q, Who did you name it to ? 

A. I think I told Nicholas Johnson of it. 

Q. When did you tell him ? 

A. I couldn't mind, exactly. 

Q. How long before Jim was killed ? 

A. Maybe that day, aiKl maybe it might have been two days. 

Q. Or it might have been that day ? x 

A. I cannot say. 

Q. You don't know ? 

A.' No, sir ; I ain't going to take an oath to anything I can't tell. 

Q. Did you go and tell this gentleman, in order to alarm him, and put 
him on his guard? 

A. No, sir; not to alarm him. 

Q. Were the white people in that County generally armed ? 

A. No, sir; they had no arms ; there was some little old shot guns. 

Q,. Yet every person had a gun of some sort, had they not ? 

A. Well, a heap hadn't any ; I didn't have any, I know. 

Q. Didn't they have a pistol ? 

A. No, sir. 

Q. If you had been very much alarmed you Vi'ould have got a gun, 
wouldn't you ? 

A. Maybe I couldn't have got it ; might not be able to buy it ; nobody 
would not have given it to me. • 

Q. This shooting around at niglits, do you know whether it was white 
men or colored men ? 

A. I don't know who it was ; but suppose it to be Jim Williams' com- 
pany. 

Q,. Don't know anything about it? 

A. He was all the one in that direction where the shooting vras, that 
had a company and drum beating there. 

Q. Did you know the Ku Klux were raiding about that country ? 

A. I heard of their raiding, for I did never see one in my life. 

Q. Btit you heard of their raiding long before that ? 
, A. Yes, sir; I had heard of their raiding before that. 

Q. You heard of the colored people lying out about you there ? 

A. They never did come through our neighborhood. 

Q. . Never disturbed you ? 



316 

A. Never in our neighborhood. 

Q. Never disturbed you? 

A. Never in our neighborhood. . 

Q. How near you ? 

A. Never come nearer than a mile ; the big road was the nearest that 
I heard of their coming. 

Q. Do you know whether or not the negroes were generally alarmed 
about the Ku Klux raiding around them? 

A. I don't tliink they were — not bad. 

Q. Were they at all ? 

A, Some that I heard talk didn't talk as though they were alarmed. 

Q. But I am asking, as a fact, ^vhether a state of terror did not exist 
among the colored people from the Ku Klux ? 

A. Home were alarmed and some were not. 

Q. Were not the Republicans among the men that Avere alarmed ? 

A. No, sir ; there was a heap that was not. The biggest part were not 
alarmed. 

Q. Don't you think, as a matter of fact, that the colored people were 
more alarmed from the Ku Klux than the white people were from the 
colored people ? 

A. I don't think they were. 

Q. How many more white people in that County than colored ? 

A. I don't know. 

Q. There are more white people than colored ? 

A. I expect there is at this time. 

Q. Were there not as much a^ two or three white men to one colored 
man ? 

A. No, sir ; I think not. 

Q. What do you think the proportion is? 

A. I don't know. 

Q,. But you think there are more white people than colored ? 

A. I think there is. 

Q. Don't you think the white people are quite as able to take care of 
themselves as the colored people ? 

A. If they had the means. 

The Court. That won't do. 

Mr. Corbin. The point is simply this : These distinguished gentlemen, 
on the other side of the table, are trying to show a state of alarm among 
the white people — 

The Court. You have a perfect right to show a state of alarm among 
them ; but when you go to build up an argument — 

]\Ir. Corbin. But we propose to show it is a fact. 

Th<3 Court. Well, we don't think it necessary. 



317 

Mr. Corbin. We don't insist on it. We don't* think any of it is of 
very much importance. 

Mr. Johnson. What do you ask it for? 

Mr. Corbin. The counsel on the other side has led us into this sort of 
business. 

Q. What about Dr. Ellison's fire ? you said you had heard of it? 

A. I heard of it, but don't know anything about it. 

Q. Did you or not understand that that fire is charged upon vv'hite j)eo- 
ple? 

A. I didn't hear it charged upon them. 

Q. Never heard it charged upon anybody ? 

A. No, sir ; I never heard it charged upon any one. 

Re-Direct Examination. 

m 

Q. You "were asked as to this man's manner when he made these 
threats. Now describe his manner ? 
A. He was mad. 
Q. What evidence did he give ? 
A. I knowed he was mad from his talk when he started out. 

TESTIMONY OF JOHN B. FUDGE. \_,.'' 

John B. Fudge, a witness for the defense, being duly sworn, testified as 
follows : 

Direct Examination by Mr. Stanhcry. 

Q,. Do you live near this Jim Williams ? 

A. I do. 

Q. How far from him ? 

A. About a mile and a half from him. 

. Q. Do you know the man ? 

A. Yes, sir. 

Q. Know him well ? 

A. Yes, sir. ' 

Q. Did you have a talk with liim at the election last October? 

A. Yes, sir, I did ; about a week or ten days before. 

Q. Where at ? 

A. My own house. 

Q. Had he come there ? 

A. Yes, sir. 

Q. What business had he ? 

A. I don't know any business. He first came and called, and I v\-ag 
told that there was a colored man at the gate wanted to see me, and 



318 

I walked around to see who it was. When, I got around the corned of 
the house, I saw it was Jim Vv^illiams. I walked up and spoke to him, 
and he did to me. 

Q. Was the. conversation there, at the gate ? 

A. At my gate. 

Q. Now tell us what it was. 

A. I then asked him if he wanted to see me on any business, and he said 
he wanted to have a talk with me ; and I said to him, if it is on politics, 
says I, I don't wish to talk ; and his reply was, it was. 

Q.. Were you of opposite politics from him ? What were your politics ? 

A. Well, mine was for — of course, mine was for the Democratic party. 

Q. You said j'ou didn't want to talk any politics ? 

A. Yes, sir. 

Q. What did he say? 

A. He says, "you must." Says I, "no, no." He then said to me, 
" Mr. Fudge, I would like very well if you and I could vote together in 
the next election, which is coming off shortly." I said, " very well, we 
can." He then said, " yes ; but " he says, " I reckon you would want me to 
vote your way." Said I, "you can." I just said to him this. Says I, 
" you can — we can vote together." He saj^s, "that would be for Judge 
Carpenter and General Butler;" and he says, " I would see them in hell 
before I vvould." " Oh, well," says I, " Jim it don't matter particularly . 
I reckon you will allow me the same chance." He said, " yes." 

The Court. What has this to do with it? 

Mr. Stanbery. We have not done with the conversation. 

The Court, Let us get to the point. 

Mr. Stanbery. It is not my fault that he don't get to it any sooner. 

The Court, What is the point about v.'hich you wish to have him tes- 
tify? 

Mr. Stanbery. The point of direct threats. 

The Court. Let us hear what the threats are — go on. 

A, He then said to rae — he says, "in case," I think was the words — 
" in case we don't succeed in carrying the next election," he says, " we 
will kill from the cradle to the grave, and we vrill apply the torch in 
every direction ; we will lay waste to this country, generally." Says I, 
"you go on, liow," and at that he turned his mule, and, as he^turned his 
mule, he said, " I can go to Gov. Scott and get as much money as I want, 
anrl you can't ;" says I, " go ou home." 

Q. V/hat was his manner ? serious, or how ? 

A. I think he was serious ; he spoke cool and deliberate. 

Q. lie did ? 

A. He did. 

Q,. AVhat election was he speaking about ? 



319 

A. Last October. 

Q. How long was this before the election? 

A. I can't say positive ; it was a week or ten days, I tbinlc. 

Q. Wliere did Williams coruc from io tbat part of the country ? 
Where had he been before? Did you ever hear him say ? 

A. Before when ? 

Q. Before he came to that part of the country to live ? 

A. I never heard him say. W^ell, in 'GQ, I got acquainted wdth him 
first. Mr. Wilson, a neighbor of mine, ^eut for me to go cut oats for him 
one day — 

Judge Bond. Oh, dear me alive. Mr. Stanbery, can't you ask the 
question ? 

The wituf^ss. I was telling him where I got acquainted with this nig- 
ger. 

. Cross-Examination hy Mr. Corhin. 

Q. How long do you say you had known Jim Williams? 

A. Since 'QQ. 

Q. Live within a mile and a half of him ? 

A. Yes, sir ; I suppose, within a mile and a half. 

Q. Did you ever know Jim Williajas to kill or attempt to kill? 

A. ]Mo, sir ; I never knew him to be in any rows of killing people. 

Q,. W^hat Avas his -reputation as an orderly, quiet citizen ? 

A. Well, I would term him bad. 

Q. Yfhat is that? 

A. I would — his reputation. 

(2- When did you think his reputation bad first? 

A. I thought so when he was talking to me. 

Q. You had never known anything bad before that? 

A. Weil, I had heard things. ^ 

Q,. But what was his general character in the community — good or 
bad ? 

A. Well, it was considered bad. 

Q. Do you knovv^ whether it was considered bad through the commu- 
uity ? 

A. It was. 

Q. When— at first? 
■ A, I would say that last year wr.s the first time. 

Q. What time last year? 

A, I cannot exactly designate the time ; but it was some time through 
the summer or fall. 

Q. .He was a leading politician, was he? 

A. Yes, sir ; thought to be. 



320 

Q. Leading man amoDg the colored people ? 

A. Yes, sir. 

Q. Leading Republican among the colored people? 

A. Well, as to being a leader amongst them, I was not certain of that, 
but I took him to be so. 

Q. Made speeches, did he? Republican speeches? 

A. I never heard of him making but one speech in my life. 

Q. Held in high esteem among the colored people? 

A. Yes, sir. 

Q. Were you alarmed at him when he said what you say he said to 
you? were you frightened yourself? 

A. For my own part ? 

Q. Yes? 

A. In my own person, do you mean ? 

Q. Yes? 

A. Well, there was but one man there, and I was but one, you know. 

Q. Exactly? 

A. Well, as to being frightened at one man, I never have been yet ; 
not much. 

Q,. What Jim Williams said, then, did not scare j^ou ? 

A. In regard to my family it did. 

Q. Did it scare you yourself? 

A. Not particularly, me alone. 

Q. Well, you were included in that list of persons between the cradle 
and the grave ? 

A. Yes, sir ; I was ; I was. 

Q. Did you think that Jim Williams was going to do that thing ? 

A. I did ; I thought he exa'ctly meant what he said. 

Q. Tliat he was going to kill from the cradle to the grave ? 

A. I did. I thought he vrould do precisely what he said. 

Q. What did you do to prevent him from killing you and your 
family ? 

A. I did nothing. 

Q. Did you keep a guard about your family to protect them from 
Jim Williams ? 

A. No, sir ; I thought that I was guard enough, vrhile I would last, 
for him alone. 

Q. Did you expect that Jim was going to do that as his busiucs* from 
that time everywhere? 

A. As a matter of course, I expected it ; he told me so. 

Q. Did you expect him to do it ? 

A. As a matter of course, I expected him to do it ; he told me tliat 
he would do it. 



321 

Q. I want to know whether you did or not ? 

A. I did. 

Q. And yet you did nothing to protect your family ? 

A. Me? 

Q. Yes? 

A. No, sir; I did nothing to protect myself; I thought I woukl be 
there myself. 

Q. You expected Jim Williams to undertake that business alone ? 

A. As to that, I can't say ; one man would be enough to burn my 
house up, and my family in it. 

Q. Did you take any steps to have him arrested or bound over to 
keep the peace ? , • 

A. No, sir ; I expected to be home pretty much all the time myself. 

Q. And you would use your eyes night and day ? 

A. No, sir ; I expected to sleep. 

Q,. You didn't lay out in consequence of that threat, or have your 
family lay out ? 

A. No, sir ; not while I was there ; I was there every night. 

Q. Did you ever hear anybody say that Jim Williams did carr}^ out 
that threat before he was killed, or attempted to carry it out? 

A. What is the question ? 

Q. I ask you if you ever heard of him attempting to carry cut that 
threat, to kill from the cradle to the grave, at any time before he was 
killed ? 

A. I never heard it, only from him ; he told me that he intended to 
do it. 

Q. I ask you, did you ever hear that he did do it, or attempted to 
do it? 

A. No ; I never heard of him commencing. 

Q. Did you go into an organization of the Ku Klux Klan to protect 
yourself from Jim Williams? 

A. Never did. 

Q. Did you join the Klan ? 

A. Never did. 

Q,. You didn't think it necessary to go and join the Ku Klux to pro- 
tect yourself from Jim Williams? 

A. Never did. 

Q. Are not a member your.self ? 

A. No, sir. 

Q. You knew of Ku Klux raiding round the country during the 
winter ? 

A. I heard of it. 

Q. Long before Jim Williams was killed ? 
21 



322 

A. I vron't say positive whether it was long or not ; it was some time 
before. 

Q. Do you know whether the colored people were lying out around 
there ? 

A. I do not. 

Q. Didn't you understand that to be a fact ? 

A. That was hearsay ; I heard it, but do not know it to be so. 

Q. You never saw them laying out ? 

A. Never did. 

Q. But you understood it was so ? 

The question was objected to, and not pressed. 

Re-Direct Examination. 

Q. You have said that this Jim Williams stood in great respect by the 
colored people around ? 

A. Very much. 

Q. Do you know whether or not he had great influence over the col- 
ored people ? 

A. He did. 

Q. Was he a passive or violent man in temper ? 

The Court. Mr. Stanbery, don't make a man state his opinions as 
, flicts. 

Mr. Stanbery. He is giving the character of the man. The other side 
called it out. 

The Court. No, he was giving the general reputation of the man. Now 
you ask what sort of influence this man had, and that cannot possibly be 
put in. 

Mr. Stanbery. J am following the gentleman. He has got from the 
witness the fact that he was respected by his colored brethren. I am fol- 
loAving it up, and that has led me to it. 

Q. 'You stated that he had made a political speech. Were you present 
vrhen he made that speech ? 

A. Sir? 

Q;. (by Mr. Corbin). You were not present ? 

A. What do you say ? 

Q, (by. ;Mr. Corbin). You were not present when he made that 
speech ? 

A. No, sir. 

TESTIMONY OF A. F. IIINSON. 

A. F. Hinson, a witness for the defense, being duly sworn, testified as 
' follows : 



323 

Direct ExmninaUon hij Mr. Slanhery. 

Q. Are you acquainted with this Jim Williams ? 

A. Yes, sir. 

Q. How long have you known him ? 

A. The last four or five years, sir. 

Q. Did you talk with him last foil ? 

A. Yes, sir. 

Q. Before or after the election ? 

A. After the election, sir. 

Q. Where was it ? 

A. At my own house. 

Q. How far from where he lived ? 

A. I suppose about thre^ miles, sir, to the best of my knowledge. 

Q. Tell us what the talk was ? 

A. He came to ray house one morning — about the middle of last Feb- 
ruary, or the latter part of it — and appeared to be very much out of hu- 
mor. I spoke to him, and asked him, says I, " What's the matter this 
morning?" "Well," he says, " there is some of my company wanting to 
give up their guns." Well, I told him I thought that would be a very 
good thing; and he says, "no." Says he, " if I don't get what has been 
promised me," says, he, " I will take from the cradle ;" and says, " there 
has been no burning done to what there will be," and rod^e right off', and 
left me immediately. 

Q. What was his manner ? 

A. Well, he appeared to be very much out of humor. 

Q. Had there been any burning in that neighborhood at that time? 

A. Before that there had been burning ; I don't know whether right 
in the immediate neighborhood ; some distance off; four or five miles, 
probably. 

Q. He did not state Avhat had been promised him ? 

A. No, sir ; I don't know what that was. He did not give me time 
to ask him that question. He rode off immediately after making those 
remarks. 

Cross-Examination by Mr. Corbin. 

Q. Where do you live? 

A. I live in York District. 

Q. How far from York ? and how far from Jim Williams' ? 

A. Nine miles from Yorkville. 

Q. What road ? 

A. On Armstrong's Ford Road. 

Q. How far from Jim Williams' ? 



324 

A. About three miles. 

Q. You and Jim Williams on friendly terms ? 

A. Yes, sir. 

Q. Wliy did he make this remark to you ? 

A. Well, he rode up to my house and appeared to be very much out 
of humor. He was in company with some one else ; and I heard him 
talking, going up the road ; he and his friend parted where the road leads 
off, and he came up to my shop, and I asked him what was vrrong, then 
he just made those remarks that I have just related. 

Q. How long was this before he was killed ? 

A. Well, I don't — it was in the latter part of February, as well a? I 
remember, that he made those remarks to me ; and I expect it was 
sonle time in March when he was hung. 

Q. How long — how many days ? 

A. Probably some fifteen or twenty days ; something like that. 

Q. Was it before or after a company of United States troops came 
to Yorkville ? 

A. AVell, I don't remember as to that. 

Q. Do you remember when they came there ? 

A. Yes, sir ; I don't remember the time ; I remember about their 
coming there. 

Q. You remember the fact ? 

A. Yes, sir! 

Q. Now, do you remember whether this remark was made before or 
after that company came there ? 

A. No, sir ; I don't. 

Q. Do you know whether it was before or after the order by Governor 
Scott as to collecting arms ? 

A. No, sir ; I don't remember that either. 

Q. Don't know anything about it ? 

A. No, sir ; I do not. 

Q. What was he out of humor about ? 

A. He told me it was because some of his men were wanting to give 
up their guns, and he didn't approve of it. 

Q,. Did he give you any explanation of what he meant v>hen he 
said, if he didn't get what he wanted that h6 would do so and so ? 

A. No, sir ; he didn't explain that point ; in fact, he didn't give me 
time to ask the question. 

Q. You don't know what he meant by that ? 

A. No, sir. 

Q. Do you know whether he wanted anything of anybody at that 
time? 

A. No, sir ; I do not. 



325 

Q. Do you kuow whether he demanded anything of the wliite people 
generally at that time ? 

A. No, sir ; nothing in particular ; I don't, sir. 

Q. Did he mean white people or colored people he was goiug to 
kill? 

A. White people. 

Q,. Did he say white ? 

A. No, sir. 

Q. How do you know ? 

A. I judged on that. 

Q. He did not say white or colored, did he ? 

A. No, sir ; he never made no respect of any color ? 

Q. Do you know whether he attempted to kill any one ? 

A. No, sir ; I don't think that he did. 

Q. Never heard that he did ? 

A. No, sir ; not that I know of. 

Q. What v.'as his character and reputation in that neighborhood 
heretofore, since you have known him ? character as a quiet, orderly 
citizen ? 

A. Well, sir, I don't know anything much about his character ; no- 
thing more, except about his character, that he was a captain of the 
militia, and was said to be a very bad boy. 

Q. . What was his general reputation ? 

A. That is his general reputation. 

Q. Was a very bad boy ? 

A. Yes, sir. 

Q. Bad for what? 

A. Well, that he was very impulsive, and tried to carry out any point 
that he had taken sides with. 

Q. What point — what kind of a point ? 

A. None in particular, but anything he took a notion to — anything 
that he sided with. 

Q. That he was very impulsive ? Do I understand that he was a 
pretty independent negro ? 

A. Yes, sir ; pretty independent. 

Q. And stood up for his rights ? 

A. Well, he claimed to do that. 

Q. And he was called, consequently, a pretty bad boy ? 

A. Yes, sir ; to the best of my knowledge. 

Q. You never knew of his doing any of those acts, did you? 

A. No, sir ; I did not. 

Q. Ever hear of his stealing anything ? 

A. No, sir. 



326 

Q. Ever hear of his burning anybody's house? 
A. No, sir. 

Q. Any criminal conduct against the laws of the country ? 
A. Nothing more than making threats. 
Q. You heard him make the threats ? ' 
A. Yes, sir. 

Q. Was you frightened by what he said that day ? 
A. Yes, sir ; somewhat. 

Q. Did you take any precautions to protect yourself against him? 
A. No, sir ; not any particular, I didn't. 
Q,. Or to protect your family ? 
A. Yes, sir. 

Q,. What precautions did you take to protect your family ? 
A. Well, I always had — when I laid down, I was always prepared for 
any assault. 

Q. Did you ever expect any assault from Jim Williams ? 
A. No ; I don't know as to that. 
Q. Did you expect it ? 

A. I didn't know, probably, but what he may ; he made these threats 
to me. 

Q. Answer directly whether you did or did not. Did you expect him 
to come and murder yourself and family ? 
A. I don't know. 

Mr. Corbin. We insist upon an answer, if the Court please. 
Judge Bryan. He said he might do so. 

Q. (by Mr. Corbin). That does not answer it ; the question is, did you 
expect Jim Williams to come and kill you or your family ? 
A. No, sir ; I cannot say that positive. 
Q,. Did you ever have any fears from the Ku Klux ? 
A. No, sir ; not particularly. I have heard that there was threats 
made on me by them. 
Q. For what ? 

A. Well, sir, for keeping spirits in my house for sale. 
Q,. Did you have any fear of them ? 
• A. Yes, sir; I had a while. 
Q. Were they raiding around the country more or less? 
A. They were, I believe ; that I heard ; I don't know it to be true. 
Q. In Avhat portions of the County did you know they were raiding ? 
A. I heard of them being in different portions of the County. 
Objected to. Objection sustained. 
Q. When did you have this fear of the Ku Klux ? 
A. Some time along last spring, sir. 
Q. What time in the spring ? 



327 

A. I believe it was in — as well as I remember — it was in March, per- 
haps. 

Q. That is about the time Jim Williams was killed ? 

A. Yes, sir. 

Q,. Had you more fear of the Ku Klux than you had of Jim Wil- 
liams ? 

A. No, sir ; not in particular, I didn't. 

Q,,- Which did you fear the most, Jim Williams or the Ku Klux? 

A. Well, sir, I didn't know which — to tell the truth, sir. 

Q. Did you join the Ku Klux for your protection ? 

A. Never joined them. Well, I joined a society in 'Q8. 

Q. What were they called ? 

A. There was no name for it. There was a time' appointed to make 
an organization of some sort, and I went to the place appointed, and 
there was but two or three men that went there, and the thing just 
dropped. 

Q. Who were the men that met you to form the society ? 

A. Capt. Crawford. 

Q. Neil Crawford ? 

A. Yes, sir ; Mr. Kuykendall. 

Q,. Where was that meeting ? 

A. It was on Mr. Swann's land. 

The Court. ¥/^hat has that to do with it. 

Q. You went there to form an association, but it fell through ? 

A. Yes, sir. 

Q. Any constitution and by-laws read there ? 

A. No, sir ; not at all. 

Mr. Johnson. We object. 

Q. What did you propose to have — that is what I want to know — 
what was the name of the thing ? 

A. As I told you before, there V\'as no name given. 

Q. What did you understand the name was to be? 

A. It was protection for the country. 

Q. I didn't askwdaat it was going to be — I asked the name of it? 

A. I don't know, sir. 

Q. You don't know what the name was to be ? 

A. In York County, sir? Not then, I didn't. 

TESTIMONY OF JOHN J. LOWRY. 

John J. Lowry, a witness for the defense, being duly sworn, testified r.s 
follows : 



328 

Direct Examination by Mr. Stanhery. 

Q. Where do you reside ? at what place ? 

A. About a mile and a half from the Court House. 

Q. On a plantation ? 

A, A little farm. 

Q. AVere you residing there in the fall of 1870 ? 

A. Yes, sir. 

Q. How long prior to that ? 

A. I have been residing there since '55. 

Q. And you reside there still ? 

A. Yes, sir. 

Q. Now state whether you hai'e been at elections there. 

A. Yes, sir; I have been to many since the one of last year. 

Q. That fall election ? 

A. Yes, sir. 

Q. Whereat? 

A. Up in the village of York. 

Q. Was there any interference ? 

Mr. Chamberlain. Wait. 

The Court. Unless you show that your party was there. 

Mr. Stanbery. The Democratic party was there. 

The Court. That will not do, unless you mean to show that they were 
identified with the conspiracy. 

Mr. Stanbery. I can't prove the fact that there was no disturbance 
ther;2 ? 

The Court. I don't see the pertinency to the case. 

Q. State the condition of the neighborhood. In the first place, was 
there any case of violence or incendiarism there that fall, and the winter 
and spring following? Were there any fires? 

Mr. Corbin. I don't see any more pertinency to that question than the 
other. 

Q. Did you see any man at that election who has been arraigned as a 
Ku Klux. 

A. I have not, sir. I am not acquainted with those men — those young 
men. 

Q. But you see them now ? 

A. I am not acquainted with tlfose young men ; they have grown up 
so fast that I would not remember them, if I would see them out. I 
know the old men. 

Q. You don't recollect seeing any man at that election who is 
charged with being a Ku Klux ? 

A. Do you mean any one in this house ? 



329 

Mr. Corbin. No, that will not do. 

Q. Did you see Major Owens there? 

Mr. Corbin. He is not one of these parties that we are trying here. 

Q. Did you see Major Avery there ? 

A. I don't recollect about seeing Avery there. 

Mr. Chamberlain objected to the question, on the ground that it was ir- 
relevant. 

Q. Was Dr. Bratton there ? 

A. Yes, I think he was there, sir. I saw him in the afternoon, because 
I stopped at his house. 

[Counsel for the Government objected to these questions, on the ground 
that Bratton was not included in the indictment. The Court held the 
question to be admissible.] 

Q. Now state whether there was any interference ? 

The Court That must be confined entirely to somebody whom the 
prosecution has identified with the conspiracy. 

Mr. Johnson. We are now confining it to Dr. Bratton. 

Q. Now state whether there was any interference with anybody's right 
to vote on that day ? 

Mr. Corbin. That is not the question. 

Q. Now, will you answer? 

Mr. Corbin. What is the question ? 

Q. Whether there was any iutei-ference with the right to vote on that 
day ? 

Mr. Corbin. No, sir; that is not the question ruled in. 

IMr. Johnson. Ask the Court. 

Mr. Corbin. On the part of these people, or Dr. Bratton ? 

Mr. Johnson. Well, on the part of Mr. Bratton ; if there was no in- 
terference on the part of anybody, there was no interference on the part 
of Dr. Bratton. 

Mr. Chamberlain. The question must be confined to this conspiracy. 

Q. Wa^ there any interference by any one, or by Dr. Bratton ? 

Mr. Chamberlain. Which ? 

Q. Did Dr, Bratton interfere with anybody's right to vote at that 
election ? 

A. I did not see nor I did not hear him interfere was up there only 
an hour or so. 

Q. Was there a state of alarm ? 

A. Yes, sir. 

Q. Whilst you were there ? - 

A. Yes, sir ; in the vicinity of Yorkville. 

Q. Of Yorkville? 



330 

A. Yes, sir; there was a state of alarm from the time that Scott armed 
the blacks. 

Q. Was it from that cause ? 

A. Yes, sir; I think it was from that cause. 

Q. What was the nature of the alarm ? 

A. Well, there was a feeliug of insecurity and uneasiness from having 
arms in the hands of those people — the blacks. 

Q. Did that generally pervade the white people that were not armed ? 

A. Yes, sir. 

Q. From this cause ? 

A. Some time after they were armed, I saw a subscription in the vil- 
lage to subscribe to get these army rifles — Winchester rifles ; it was after 
they were armed that I saw this subscription. 

Q. Was there or not any state of alarm among the white people iu 
that neighborhood ? 

Q. (by the Court). You mean a petition ? 

A. No, sir ; it was cal'ed a subscription for those Winchester rifles. 

Q. (by Mr. Corbin). For whom ? 

A. For the white people. • Only for defense, mind you. 

Q. Was it a common question among the white people? 

A. Ye^-, sir;, it was a very common topic of conversation. 

Q. (by Mr. Corbin). What was a common topic? 

A. Their being armed, and the state of the country, from the fact that 
they had arms and ammunition. 

Q. Now, about the state of the country afterwards. Were there any 
burnings ? 

A. Yes, sir ; there were a good many. 

Q. About that part of the country? 

A. Well, just where I lived there were none. The only burning that 
I know of, from where I live from the village, or down to the Chester 
line, was Mrs. Rainey's gin house ; but, up the other side, there was 
plenty of burning ; but, in that area of countr}'-, that was the only one 
that was burned. 

Q. Those houses that were burned — who did they belong to ? 

A. I cannot recollect, perhaps, all of them, because I took no account; 
but I think the first house burned was Dr. Ellison's saw mill and gin 
house, and, perhaps, some straw house. 

Q. Is there any other house ? 

A. Yes, sir ; ]Mr. Hiram Thomasson's, old ]\Irs. Thomasson's and 
Hugh Warren's. 

Q. White people ? 

A. Yes, sir; all white people. And, in Ebenezer, Dr. J. M. Lowry ; 
a gin house for him was burned. 



331 

Q. Can you give us any idea of the number ? 

A. Well, I can't do it exactly; have heard it estimated at about 
twelve or fifteen houses — twelve, or fourteen, or fifteen, or somewhere 
there. There might have been over that, but I didn't hear. 

Q. Have you heard, or was it the common talk, that threats had been 
used ? 

A. Well, the first threats that I heard was — I don't know as I can 
state the time ; but in Yorkville, one night, they had some disturbance 
with the negroes. They went in the hotel and got the arms. 

Q. That is, the colored people — the colored people went to York- 
ville ? 

A. Oh, no ; those living in Yorkville went and got the arms. There 
was some little quarrel that had taken place in the street between Dr. 
Thompson and a colored man. 

Q. Do you know this of your own knowledge ? 

A. I wasn't there ; I didn't know for two days afterwards. 

Q. You say you know that there were threats, that the people were 
alarmed on account of threats. Xow, tell us any of those threats ? 

Q. (by Mr. Corbin). Did you hear this ? 

A. What threats ? What do you mean ? 

Q. Why, threats made by colored people towards the whites ? 

A. Now, I heard this from a man, one day — a white man — and I saw 
him after, and asked him about it. I met him in the road, and said to 
him that I heard that he had been sleeping out of his house, and, if so, 
he could come down and stay with me — 

Mr. Chamberlain. He is not stating a fact. 

The Court. State the facts. 

Q. My question is, whether in the neighborhood among those people 
there was a state of alarm in consequence of those threats ? Do you 
know that tliere was then a state of alarm there in consequence of those 
threats ? 

A. There were — from fires — incendiary fires — threats from them. 

Q. Thei'e were threats of that character. 

A. There were. 

Q. You understood those threats — that burnings would take place? 

A. Yes, sir. 

Q. Did you know Jimilainey? 

A. Yes, sir. 

Q. How long had you known him ? 

A. Sixteen or eighteen years, I suppose. 

Q. What was the character of the man for order ? 

A. Well, as fiir as I knew, he had sustained, up to the time he got t" -": 



guns, a very good character, just as good as any colored man would sus- 
tain. He was idle ; didn't work much. 

Q. After he got those guns, what was his reputation ? 

A. "Well, I think he was very foolish, after he got the guns ; very 
foolish. 

Q. Had you any conversation with him ? 

A. Yes, sir. 

Q. State what it was ? 

A. In the summer after Mrs. Rainey's gin house was destroyed — a few 
days afterwards — I saw him and asked him if he wouldn't send the guns 
again to Governor Scott; that Mrs. Rainey and others were uneasy, and 
she said she was going away from home ; I asked himi if he wouldn't 
seud the guns to Governor Scott ; that he had no use for them ; that 
they would not answer for hunting, and that they were an army gun. 
His reply was that he would consult the company, and asked me why we 
didn't want them to be armed, I told him it was reported around there 
what he threatened to do, and asked if it was so. He replied that I need 
feel no uneasiness, or any of our own people; that he didn't intend to 
hurt them. I asked him who was his own people? He said he meant 
the family and other relations of Mrs. Rainey; and I told him, then, 
that if he commenced any stich things, he couldn't control the company. 
He said he could, and I saw him no more for two or three weeks. I told him 
then : " You didn't give up the guns." He said that the company did not 
want him to give them up, and that he didn't want to. I told him : " From 
your threats, you might be hurt, and for two or three weeks you had bet- 
ter get out of the way, if you keep the guns." He didn't deny the 
threats. • 

Q. What did he say in reply to that ? 

Q. (by Mr. Corbin.) Threats by whom ? 

A. His threats, sir ; I asked him if it was so — that he made those threats. 
He said, in reply, that you neerl not feel any uneasiness ; there is not any- 
body going to hurt you ; but I told him that I was not the one, it was 
the people down there. This was twelve or fourteen miles from where 1 
lived. He didn't deny the threats, nor he didn't say that he made threats. 
After that, when I saw him, he seemed to be angry. I had these conver- 
sations within two or three weeks ; after that I asked him again, and 
asked him, and said to him that the people were uneasy down where he 
lived ; it was not where I lived ; but I had a plantation down there. I 
asked him if he wouldn't give the guns up, that it would allay the unea- 
siness in the country from liis threats ; and he told me that he would not, 
after consulting his company. He said that he had been in Sherman's 

n } ' — ] told him he was not with him, had only straggled off with Sher- 
man's army — and that he knew hojv to carry on war ; this is what he 



OOO 

said, and that he had as much right to arrest anybody as any of General 
Sherman's officers ; he arrested one man, they said, or it was reported he 
had, and I asked if he had, and he said he had the same right as any of 
General Sherman's officers ; I told him he hadn't. 

Q. Was he talking seriously at this time? 

A. He was a little angry ; he was a little excited from some cause then 
at the other conversation I liad with him ; he went up to York, I think, 
Thursday or Thursday week before he was hung, and I asked him then if 
he would give the guns up ; he told me he would ; I told him that if he 
would I would let him have something to haul them up to' the Sheriff. 

Cross-Examination by Mr. Corbin. 

Q. You say the last conversation you had with Jim Williams, he told 
you he would give up the arms ? 

A. He did. 

Q. How long was that before he was killed ? 

A. it was Thursday before, or Thursday week, I don't know which ; it 
Wiis some short time ; seven or eight days, but on Thursday, I know. 

Q,. Now, Mr. Lowry, did he tell .you at that time that the Ku Klux 
were raiding about the country, and the colored people were greatly dis- 
turbed ? 

A. There was no Ku Klux over in that point; no riding in that^rea 
of country. 

Q. But there had been in other portions of the country ? 

A. In the western portion, southwestern and northwestern, and some 
in the eastern and northeastern, but in that area that was the only 
raid. 

Q. But they had been raiding ? 

A. Yes, sir; I heard so, mind you. 

Q. Certainly I don't understand you were present.' Did Jim Williams 
express any fear of a raid down there ? 

A. Yes, sir; he did. 

Q,. Did he say the people were alarmed down there ? 

A. Didn't hear anything of that kind. 

Q. Colored~people, on account of those raids ? 

A. No, he never said that. The last conversation I had with him 
though, when he told me that he would give the arms up, he said that he 
was — he said that he found that what I had been telling him was so, and 
he was then willing to give the guns up ; he didn't say that any one else 
was alarmed. 

Q. Was it a fact, within your knowledge, that the colored people were 
very much alarmed over the County ? 



0"^ 1 
OtJ-i 

A. Yes, sir ; they were. 

Q. On accoimt of the Ku Klux raicls? 

A. On my own plantation they were — but now I recollect there was a 
panic. 

Q. They were alarmed? 

A. They were alarmed. 

Q. They slept out ? 

A. I could not restore confidence to thern, no way. 

Q. How long did they sleep out last winter? 

A. I don't know ; it may have been once in a while, and it may have 
been once a week. 

Q. How long did this j)anic among the colored people last? 

A. About two months, 1 think. 

Q,. Commencing when? 

A. Well, jusit over in the vicinity where I lived, and from there on 
down to the line ; it commenced, I suppose, iu February. 

Q. When did it commence in the other parts of the County? 

A. In the upper parts ,of the County — in the extreme upper i3art — 
northeastern part — it commenced in November. That was the time this 
Tom Koundtree nigger was killed. 

Q. That was in November? 

A. I think it was somewhere about that time — the last of November, 
I think, or the first of December. 

Q. Had any of those burnings taken place before these raidings, in 
any part of the country ? 

A. I cannot say positively, but I think old Dr. Ellison's. I can't state 
positively, though, as to that fact. 

Q. That is the only one, if there was an}* that you know of? 

A. I think that was the first one. 

Q. Now, haven't you understood that the burning was done by white 
men ? 

A. Yes ; by w'hite Republicans, if you want the truth. 

Q. You have heard it was done by white Republicans ? 

A. Yes, sir. 

Q. Not by negroes ? 

A. Yes, sir ; you can get men from that district who heard them say 
they would apply the torch. 

Q. For what reason ? 

A. Well, I can't tell you anything else more than just the general 
opinion, that there was au antagonism between the Union League and 
this Ku Klux organization. 

Q. Have you understood so from Mr. Ellison himself? 

A. I have not seen Dr. Ellison, the old doctor, for some time. 



Q,. Have you understood from anybody that that burniug was iu re- 
taliation for something done by Dr. Ellison ; a j^ersonal quarrel? 

A. 'No, sir ; I never heard anything of that. 

Q. But the other burnings were after the raiding commenced ? 

A. Yes, sir; they were done after, and I will answer if you want to 
know. A man who was a Republican told me that he saved the town of 
Yorkville from ashes twice, and I took it for granted, when he said it, it 
was in retaliation. 

Q. Who was it ? 

A. Milus Johnson ; and the time he said it I took it for granted that it 
was iu retaliation. 

Q. Who was going to burn it ? 

A. I never asked liim ; I just said : " You gentlemen must have had it 
up for consultation." He did not answer. 

Q. When did he say he saved it? 

A. Didn't say the time. It was in December that I had the conver- 
sation. 

Q,. Any action by the authorities in reference to it ? 

A. I never heard any. Oh ! yes, there was, too. I don't know 
whether it was the authorities or not, but the people, they guarded the 
place for some time with arms, and they got the citizens to come out. I 
was asked to come up to help to guard it. 

Q. Any other official action taken in reference to it ? 

A. I never heard of any ; if there was, I didn't know it. 

Q. When was this? 

A. In last December, I told him that I heard he was sleeping out, and 
I told him he could come down and stay in my house. He was appre- 
hensive for some talk by the Ku Klux ; and he pulled out some papers, 
signed " K. K. E.," and showed them to me. 

Q. What were those papers ? 

A. I didn't look at the papers. I just saw they were signed " K. K. 
K.," in big letters, and he said they were threatening letters. 

Q. You saw " K. K. K ?" 

A. I only saw the three K's, but it was written in a very bad hand. 

Q. Didn't read the papers ? 

A. I did not. 

Q,. He said they were threatening letters ? 

A. He said they were. 

Q. And he was lying out in consequence of them? 

A. I told him I heard he was ; he didn't say he was ; I told him if he 
was, he could come and sleep at my house. 

Q. What for ? for protection ? 

A. Yes, sir. 



336 • 

Q. Did he tell you who it was that was going to burn the town ? 

A. He did not say who it was, and I did not ask him. 

Q. Did you say that he was in a state of alarm or not ? 

A. No ; he appeared to be cool and deliberate ; but he seemed appre- 
hensive. He said he was not scared. 

Q,. Was he a Republican or Democrat? 

A. A Republican, sir. 

Q. In what time in the fall was that? 

A. In December. 

Q. In reference to Jim Williams, you say he sustained a good charac- 
ter, generally, where he lived? 

A. Well, he did not live right close to me ; it is about twelve miles 
from me ; he was a carriage driver for Sam Rainey, who was often at my 
house, and in that way I knew Jim Rainey. 

Q. Now, from your knowledge of Jim Rainey, did you consider him a 
bad man ? a man who would carry out threats of burning, and pillage, 
and slaughter? 

A. Yes, sir ; I would, sir, under evil infiuences ; but under other influ- 
ences, he would not. 

Q. He was a bright, spirited man ? 

A. No, sir ; he was a humble nigger only ; he was ignorant. • 

Q. Did you ever know of his committing anything ba'] ? 

A. No, sir ; I don't think I ever heard anything bad about him. He 
always treated me very politely ; but, as he said, he always called myself 
one of his family people. 

■Q. You felt no apprehension from him personally ? from him alone? 

A. Oh, no, not Irom him alone ; but he started his com^iany with those 
arms in his hands on expeditions that he claimed he had a right to do ; I 
would have felt alarmed then, but if I had happened on him just alone, 
I would not. 

Q. Do you know why he and his company didn't want to give up their 
arms ? 

A. No, sir ; I do not. 

Q. Don't you know that they wanted to retain them to protect them- 
selves against the Ku Klux? 

A. There was no Ku Klux, I tell you, in that whole country. 

Q. But you say that they were in almost all parts of the country ; was 
not that the report? 

A. Yes, sir. 

Q. Do you mean to say right where he lived ? 

A. I mean to say from between Yorkville — between the Concord Road, 
and the Creek. That area of country. 

Q. How big an area was there ? 



337 

A. It is from five miles one way — say eight miles by fourteen. 

Q. It did turn out, though, that the Ku Klux went down there iu 
force ? 

A. Yes ; but they were Ku Klux from the other part of the Dis- 
trict. 

Q. Were the negroes lying out ? 

A. In that neighborhood ? 

Q. Yes? 

A. I cannot say, sir ; as for that, I lived ten miles from there ; there 
was a panic among the negroes on the plantation that I hav^ hired, about 
five and a half miles from the village. 

Q. What direction from the village was Jim Rainey living ? 

A. Right south, on the Chester Road ; his house was about one hundred 
yards from the road. 

Q. Wasn't that right in the area — within fourteen miles by eight — 
that you spoke of? 

A. What place? 

Q. Your place ? 

A. It was in the area that I spoke of; yes, sir. 

Q,. Then you know that the negroes were frightened within that 
area ? 

A. Just around my plantation? 

Q. But not down where he lived ? 

A. I don't know. 

Q. Mr. Lowry, don't you understand that Jim Williams himself was 
reluctant to give up the arms because of this panic that existed among 
the colored people ? 

A. I don't know, sir ; I recollect this one expression to me — all he sail 
on the subject; he said that the other captains were cowards, who gave 
up their guns ; they had given up their arms, and they were cowards ; 
but he, when I first saw him, was willing to give them up. 

Q. But along towards March he was not willing to give them up ? 

A. Yes, sir ; but Thursday, or Thursday week, before he was hung, he 
went to the village, and told 'me that he was willing to give them up. 

Q,. Did you advise him to go away ? 

A. Yes, sir ; I did. 

Q. Why? 

A. I thought it was best from what I heard. 

Q,. From whom ? 

A. I cannot name any special one ; only this general report. 

Q. How did you understand from the general report that he was in 
danger of these Ku Klux organizations ? 

A. It was from the talk of his threats. 
22 



338 

Q. And you advised him to leave the country for awiiile? 
A. I advised hirxi to go and stay two or three weeks, until the excite- 
ment was over. 

Q. He didn't go, so far as you know? 

A. No, sir ; he told me he would, but he didn't do it. 

TESTIMONY OF DAVID THOMASSON. 

David Thomasson, a witness for the defense, being duly sworn, testified 
as follows : 

Direct Examination by 3Ir. Stanbery. 

Q. "Were you acquainted with Jim "Williams ? 

A. Yes, sir ; I was. 

Q,. Did you know anything about the colored company which was 
under his command ? 

A. No, sir ; I did not ; didn't belong to it. 

It was here discovered that the prisoner was absent, and proceedings 
Vv'ere suspended until his return. 

MR. LOWRY RECALLED. 

]Mr. Stanbery. Mr, Lowry, we shall want you again. [To the Court.] 
^Yill you require him to go out while this witness is examined? 

The Court. You had better finish Mr. Lowry first. 

Mr. Stanbery. I propose to do that. 

jMr. Lowry was recalled, and testified as follows : 

Q. Mr. Lowry, in that interview did you communicate to Mr. Rainey 
the fact that it was understood that he made threats ? 

A. I communicated it to him in the first and second interview% 

Q. "What threats did you tell him it was understood he had made ? 

A. Yes, sir ; I told him. 

Q. "What were they ? 

A. The first interview I had with him I told him that I heard threats 
that he would take his company, and he would start out with them ; and 
lie would kill from the children up, or from the cradle up ; and I just 
said to him that could not be so ; and he turned off and didn't an- 
swer me. 

Q. At the second interview did you repeat it to him ? 

A. Yes, sir; I sav/ him right close home, and I had met him in the 
road, and I told him I had heard talk and was still uneasy about him — 
his threats — and I wanted him to give the guns up. 

Q. Did you agaiii repeat what the threats were? 

A. Yes, sir ; I did. 



339 

Q. What did he say ? 

A. He said he said so ; and if these white people, he said, didu't let 
him aloue — some of them had been interfering with him. I asked him 
who they was, and he said Captain Crawford and Mendinhall ; he said 
these white people had been interfering with him, and I asked him what 
white people, and he specified those two ; and, if they didn't let him 
alone, that he would have his company out here some morning, and when 
the sun rose there wouldn't be anybody in the country ; and he went on 
to say, that the Government — the Yankees, as he called them — had prom- 
ised him forty acres of land, and they hadn't given it to him; and he 
said that if war had to take place that he would have a whole planta- 
tion. I told him that he had no right to carry on war ; he said that 
captains in General Sherman's array had the right to do it, and he had 
the same right; he had, as he called it, a paper from Governor Scott that 
authorized him to carry it on. 

Q. (by Mr. Corbin). Carry on what? 

A. War ! war ! just the same as he said General Sherman and his 
captains could. That was the second interview. 

Q,. Now, at the third interview ? 

A. He told me he would give the guns up. 

Q. (by Mr. Corbin). Wasn't going to carry on war ? 

A. No ; he was a little uneasy in the matter. 

TESTIMONY OF DAViD THOMASSON RESUMED. 

Q. You say you were acquainted with Williams ? 

A. Yes, sir. 

Q,. How liir do you live from him ? 

A. About six miles. 

Q. Had you any talk with him before his death. 

A, No, sir; not very much ; only one time me and him had a talk at 
a grog shop. 

Q. Whereabouts ? 

A. About a mile from where I live. 

Q. State what it was ? 

A. Me and him got to talking with one another about arresting one of 
the citizens, and he said that he intended to sweep from the " cradle up," 
because he had the means to do it with. 

jMr. Corbin. Sweep the cradle ; there is nothing wrong about that. 

Q. Is that all that he said ? 

A. That i,~ all the discourse that me and him had. 

Q. What citizen was it he spoke of his having arrested ? 

A. Mendiuliall, sir. 



340 

Q. Did he state -where he arrested him ? 

Mr. Corbin. Let it be of your own knowledge, my friend. 

Q. What did he tell you about arresting Mendinhall ? 

A. Nothing, particular ; only me and him was drinking and got to 
joking, and I got to talking to him about arresting Mendinhall, and he 
said yes, he intended to sweep from the cradle up, because he had the 
means to do so. 

Mr. Corbin. I suppose he had a broom. 

Q. Do you know the fact that he arrested Mendinhall ? 

A. No, sir; I do not know, but I had heard — 

Mr. Corbin. No ; stop there. 

Q. Did you hear Mr. Rainey yourself? 

A. No, sir ; I did not. 

Cross-Examination by 2Ir. Corbin. 

Q,. You belong to the Democratic party ? 

A. I don't know what party I belong to. 

Q. You voted the Democratic ticket ? 

A. I did. 
' Q, You were never raided on by the Ku Klux ? 

A. No, sir. 

Q. You didn't feel afraid of them ? 

A. No, sir ; I was under no obligations to feel afraid of them. 

Q. Do you know Hector Love ? 

A. Yes, sir ; I do. 

Q. Do you know whether he was afraid of the Ku Klux ? 

A. No, sir ; I do not. 

Q. Don't you know that he laid out at night ? 

A. No, sir ; not to my knowledge. 

Q,. Did you ever have any talk with him about the Ku Klux ? 

A. No, sir ; I did not. 

Q. You are certain about that ? 

A. Yes, sir ; I'm certain about that. 

Q. Do you remember telling Hector that if he would join the Demo- 
cratic party he would not be troubled ? 

A. I told you, once in York, that I never told him that. 

Q. Do you say so now ? 

A. Yes, sir ; I do. 

Q. You didn't tell him that ? 

A. I never told him that. 

Q. Is he a pretty good man ? 

A. I never knew anything bad about Hector. 



341 

Q. He is a Republican, aiu't lie ? 

A. I uever asked him that. 

Q. Don't you know he voted the Republican ticket ? 

A. I cannot swear that, because me and him wasn't at the ballot box 
together, to my knowing. 

Q. What was it you told me in York about it ? 

A. About what? 

Q. About your talk with Hector Love ? 

A. What was it ? 

Q. Yes. 

A. I don't mind. 

Q. Did you ever see me in York at all ? 

A. Yes, sir ; I saw you there in Colonel McCaw's house. I know you. 

Mr. Corbin. Colonel McCaw's house ? 

Mr. Stanbery. Yes. 

Mr. Corbin. I'm trying to locate myself. 

Q,. What did you tell Colonel Merrill there about this conversation 
with Hector Love? 

A. Didn't I tell Colonel Merrill there that I never told Hector Love 
that ? 

Q. Don't ask me, but tell ; I am not on the witness stand. 

A. I told Colonel Merrill that I never visited Hector Love. 

Q. Did you ever tell him anything about it at all ? 

A. Of course I did. 

Q. Tell us what it was ? 

A. Colonel Merrill asked me if I didn't try to persuade Hector Love 
to change his politics and to join mine, and there would be no danger of 
Ku Klux, and I told him I didn't. 

Q. (by Mr. Stanbery). Colonel Merrill asked you what ? 

A. He asked me if I didn't try to persuade Hector Love to change his 
politics and join mine, and join the night meetings, and the Ku Klux 
would not hurt Democrats, and I told him I didn't. 

Q. You saw the Ku Klux ? 

A. ISTo, sir. 

Q. They visited you ? 

A. No, sir ; if they were in the neighborhood where I lived, I don't 
know. 

Re-Direct Examination. 

Q. Were you put under arrest ? 

A. Yes, sir. 

Q. How did you go before Major Merrill? 

Mr. Corbin. We object. 



342 

Mr. Chamberlain. Go on; we don't care. 

Q. You were arrested ? 

A. Yes, sir. 

Q. Who arrested you ? 

A. The soldiers from York arrested me. I was put in jail, and stafd 
in jail three days ; and then I was put in the guard house, and staid there 
until I reported to Major Merrill. 

Q. Then what took place ? what was the charge ? 

A. That was the charge that I spoke of just now. 

Q. Who told you that was the charge ? 

A. Major Merrill never told me that was the charge, but he asked me 
if I did not hold night meetings, and tried to get Hector Love to change 
his politics and join mine ; and the Ku Klux wasn't going to hurt Demo- 
crats ; he never told me any other charges he had against me. 

Q. Were you dismissed then ? 

A. Yes, sir, I was. 

Re- Cross Examination. 

Q. Were you not charged with being Ku Klux yourself? 
A. No, sir ; not to my knowledge. 

Q. Do you know that Hector Love charged you with being a Ku 
Klux. 

A. No, sir, I dou't. 

[testimony op mixor m'connell. 

Minor McConnell, a witness for the defense, being duly sworn, testified 
as follows: 

Direct Examination by Mr. Stanhery. 

Q. Were you acquainted with Jim Raiuey ? 
. A. Yes, sir. 

Q. State if at any time before his being hung you talked with him ? 

A. Yes, sir, I had a talk with him on the Sunday before he was hung, 
in the evening. 

Q,. When did you understand he was hung ? 

A. On Monday night ; I talked to him on Sunday night, awhile before 
sundown. 

Q. Where abouts was it ? 

A. At ray house. 

Q. Where was he going ? 

A. He was going home ; he had been to Philadelphia, preaching. 

Q. And going home from that church, he passed your house ? 



343 

A. Yes, sir ; aud stopped there and talked to me a good wliile. 

Q. What talk had he in reference to anything going on around ? 

A. He said — he told me that he was going to Kii Kluxing, and the 
people and me would see mighty work done then ; and he said, too, he ar- 
rested Mr. Mendinhall, and he arrested him after dark ; and if it had 
not have been for Crawford that he would have killed him; and then on 
Monday morning some of his company passed my house. 

The Court. That won't do. 

Witness. Monday morning some of his company passed my house. 

Q. Was he with them ? 

A. No, sir, he was not with them. 

Q,. Who was to do this mighty work? 

A. He alloAved to take his company and do it ; that was what he told 
me. 

Q. Did he explain to you what this mighty work was ? 

A. He didn't explain any more than that. 

Q,. Then what ? 

A. Then he allowed the people and me myself w^ould see mighty work 
v/hen he took his company- and went to Ku Kluxing. 

Q. Had you heard of any threats that he had made ? 

A. Yes, sir, I had heard threats what he had made. 

Q. What kind ? 

A. That he would go out and kill from the cradle up. 

Q. You heard that report ? 

A. Heatd of it. 

Q. You didn't hear him say that? 

A. No, sir, I never heard him say that ; he told two other ones, though. 

Mr. Chamberlain. Wait. 

Q. Was it a report in the neighborhood ? 

A. Yes, sir, it was. 

Q. Who was this Crawford that had prevented him from killing Men- 
dinhall ? 

A. Ed. Crawford. 

Q. Do you know the man ; was there such a man ? 

A. Yes, sir, there was ; I know him, 

Q, What position had he? 

A. He beared a good character ; he was a friendly man to both white 
and black ; and black and white both liked him. 

Q. Did he tell you how Crawford prevented him? 

A. Crawford went Mendinhall's bail. 

Q,. Stop ; do you know ? 

A. That is what I know ; he'told me that, 

Q. Did he arrest him with his company or not ? 



344 

A. Yes, sir ; with liis company, and when Crawford went his bail he 
let it stand until Monday morning and took j^art of his company and 
went to York with them. 

Q. (by Mr. Chamberlain). Do you know anything about this your- 
self? 

A. Yes, sir; I seen the company coming up past my house to York. 

Q,. What did he tell you about arresting him ? 

A. He said if Crawford hadn't went his bail he would have killed 
him. 

Q. Did Rainey tell you what he arrested him for ? 

A. He was coming out of the field, and he was said to be drunk, amongst 
the company. 

Q,. (by Mr. Corbin). Who was drunk ? 

A. Mendinhall : and he was coming out of his field, and he and one 
wha.t they call Horace — he struck him somehow or other. 

Q. (by Mr. Corbin). Who struck him ? 

A. Mendinhall and him fell out ; then they all fell on him and beat 
him; he said about twenty of them jumped on him and beat him. 
■ Mr. Corbin. I understood Mr. Mendinhall struck one of his men. 

Mr. Staubery. And he arrested him ? 

Mr. Corbin. He had a right to. 

Q. Do you know Gunn — Kirkland Gunn ? 

A. Yes, sir; I know him. 

Q. Have you lived in the neighborhood with him ? 

A. Yes, sir ; I live in the neighborhood where he lives, not very far 
apart ; he lives above Olive Church. 

Q. What is his character for truth and veracity ? 

The Court. What is his general ruputation? 

Mr. Corbin. In the first place, whether he knows him? 

A. I know the man. 

Q. (by the Court). But do you know what his general reputation is 
among his neighbors; not what you know, but what the neighbors 
know ? 

A. Well, the neighbors knows all of him, in my neighborhood; they 
know right smart about him. 

Q. What do they say of him ? 

A. They don't say much of him. 

Q. How does he stand as a man of truth? 

A. Nobody never hardly took his word. 

Cross Examination h>j Mr. Corbin. 

Q. You are a good Democrat, are you Minor ? 
A. Yes, sir ; I am a Democrat. 



345 

Q, You voted the Democratic ticket? 

A. Yes, sir ; always voted that ticket. 

Q. Where's Ned Crawford now ? 

A. Well, Ned Crawford, he is near Yorkville, about a mile off the 
public road from Bob Liudsey's. 

Q,. Is he there now ? 

A. I don't know whether he is there now or not ; I ain't been there for 
some time, myself. 

Q. Do you know that he left there about a month ago, and hasn't 
come back ? 

Mr. Stanbery. We object to that. 

Q. Do you knoAV that he ran away? 

A. I don't know; 1 don't know whether he ran away or not. 

Mr. Johnson. We object to it as irrelevant. 

The Court. It has nothing to do with it. 

Q. You belong to a Democratic club ? 

A. No, sir ; I don't belong to no club ; I am a Democrat without 
any club. 

Q. Most of the Democrats in that County had a club. Were you 
afraid of the Ku Klux? 

A. No, sir ; I wasn't afraid of them. 

Q. Why not? 

A. They never bothered me none ; I wasn't afraid of nothing but 
the militia ; I was afraid of that. 

Q. You knew that the other colored people were afraid of the Ku 
Klux? 

A. Yes, sir ; I knew that. 

Q. All through January and February last? 

A. Yes, sir. 

Q. And Slarch ; have they got done being afraid of them now ? 

A. AVell, I don't know. 

Q. Were they afraid of them three weeks ago, when you were at 
home ? 

A. I don't know sir ; not as I know of, sir. 

Q. Do you know when they got over being afraid of the Ku Klux ? 

A. No, sir ; I don't know when they got over it. 

Q. You don't know whether they are over it yet, do you ? 

A. I can't say nothing about that. 

Q. Do you know they used to lay out all about you there last winter ? 

A. Yes, sir ; I heard some of them say that they laid out. 

Q^Did they use to come to your house for safety, some of them ? 

A. No, sir ; none came to me to protect them. 

Q. Did they use to come around there, so as to be safe at night ? 



346 

A. No, sir ; they did not. 

Q. Are you sure about that ? 

A. Certainly. 

Q. Did you never tell them that you could take care of them if they 
would be good Democrats ? 

A. No, sir. 

Q. You did not ? 

A. No, sir. 

Q. You say they never visited you at all, and you were not afraid of 
them ? 

A. Who? 

Mr. Corbin. That is all right, jou may come down. 

Court adjourned until the 15th. 



Columbia, December 15, 1871. 

TESTIMONY OF WILLIAM BEATTON. 

William Bratton, a witness for the defense, being duly sworn, testified 
as follows : 

Direct Exaviination by Mr. Stanhery. ^ 

Q. Where do you reside? 

X. In York District. 

Q. Did you know Jim W^illiams ? 

A. Yes, sir ; I was well acquainted with him. 

Q. Were you at any time a member of his militia company ? 

A. Yes, sir ; I was a private. 

Q. Were you at any time an officer of his company ? 

A. Yes, sir. Before he drew his arms, I was first Lieutenant ; when 
he drew the arms, I was a private in the ranks. 

Q. How did it happen that you were reduced in the ranks ? 

Question objected to as irrelevant. 

Mr. Stanbery said the intention was to show that he was reduced on 
account of his politics. 

Objection sustained. 

Q. Had you any conversation with Jim Williams before his death? 

A. Yes, sir ; several times. 

Q. What were those conversations ? , 

A. In tliose conversations with Williams, he made threats that he 
would rule the country, and, if he could do it in no other way, he inten- 



347 

ded to Ku Klux the white ladies aud children, gin houses and barns. 
He said if he could not rule it in that way, that he would kill from the 
cradle up. 

Q. Where was it you heard him make these threats ? 

A. At John Brattou's.- 

Q. Who was present when he uiivde these threats ? 

A. No person but he aud myself. 

Q. When was that ? 

A. X do not liuo\Y ; it was along in January. 

Q. Were you a member of his company at that time ? 

A. Yes, sir. 

Q. Was that the only occasion on which you heard him make those 
threats ? 

A. That was the only time. 

Q,. What was his manner at that time ? 

A. Only just in an angry manner. 

Q. Was that all the talk you had at that time ? 

A. Yes, sir; but I have heard him make the same threat over and 
over several times. 

Q. Whereabouts were those threats made? 

A. It was always at Mr. Brattou's. He was on Mr. Bratton's planta- 
tion. 

Q. How far from there did he live? 

A. About two miles. 

Q. Was he often at Mr. Bratton's plantation ? 

A. Yes, sir ; very often. 

Q. Were you and he intimate? 

A. Yes, sir, of course ; we were raised together. We once both be- 
longed to Mr. Bratton. 

Q. Did you mention the fact that he made these threats to other 
people ? 

A. Yes, sir ; I did. 

Q. How long before he was hung was it that he made those threats? 

A. It was along in January ; about the last of January. 

Cross-Examination by Mr. Corhin. 

Q. Are you a colored or a white man ? 
A. I have always passed for a colored man. 

Q. You did not like it very much when you were deposed in the com- 
pany ? 

A. Not very much. 

Q. Y>^ere you offended with Jim Williams when he deposed, you ? 

A. Not at all ; it did not matter to me. 



348 

Q. Were you not mad with Williams and the company ? 

A. No, sir; it did not disturb me. 

Q. When you heard Jim Williams say this, you had liGard about the 
Ku Klux, had you not ? 

A. Yes, sir. 

Q. How long had they been raiding about before that ? 

A. I do not know. 

Q. Was it a long or a short time ? 

A. It was not very long. 

Q. Did Jim Williams talk about the Ku Klux at that time ? 

A. Yes, sir; he had a good deal to talk about them. That was the 
cause of his making the threats. He said the Ku Klux came down into 
that settlement, and bothered the colored people; that he would com- 
mence Ku Kluxing white women and children ; gin houses, barns and 
stables with fire ; and if he was in power, and could rule the State in no 
other way, that he had the means of carrying on w^ar, and if he carried on 
war he would kill from the cradle u]), 

TESTIMONY OP SCOTT WILSOX. 

Scott Wilson, a witness for the defense, being duly sworn, testified as 
follows : 

Direct Examination by Mr. Stanbery. 

Q. Where do you live? 

A. I live in York County. 

Q. Do you know Jim AVilliams ? 

A. Yes, sir ; I do. 

Q. Did you have any conversation with him shortly before he was 
hung ? 

A. I had been intimate with him ; he worked on my place about two 
and a-half years; he lived within three or four hundred yards of my 
house ; I think the last conversation of any length I had with him was 
at Christmas; we had, perhaps, a three or four hours' conversation; he 
had been down here to see Governor Scott, as he told me ; he had gone 
down, he said, for the purpose of handing in his resignation ; I asked him 
if he was going to quit mustering, and if he could get away from Mr. 
Bratton I would allow him to come back and live with me. 

Q. State if you ever heard him make threats on any occasion ? 

A. The only threats I heard him make were against white men ; he 
said he had lived a while among the Yankees, and didn't like them ; he 
preferred living among our own people, and he would be damned if he 
would vote for any white man ; if there was a white man's name on the 
ticket he would cut it off. 



349 

Q. Is that the only threat you heard him make ? 

A. That was the only threat I heard him make — that he would uot 
vote for a white man. 

Q. Have you heard of threats that he had made ? 

A. Yes, sir. 

Question objected to; objection sustained. 

Q. State whether there were such rumors afloat ? 

A. I have heard it said by parties that they heard him make threats — 
it was a general rumor over the country — about burnings and murder. 

Q. Were the people in a ^tate of panic and alarm ? 

A. Yes, sir ; they were very mucli alarmed. They thought they would 
have their property insured ; that was my condition. 

Q. At that time had there been any raids of Ku Klux in that part 
of the country ? 

A. There was only one raid in that neighborhood; none before or 
none since. 

Cross- Examination by Mr. Corbin. 

Q. How do you know that fact ? 

A. I never heard of any. 

Q,. Are you a member of the Ku Klux Klan ? 

A. No, sir ; I do not think there was one in the neighborhood. 

Q. You don't know anything about it, do you ? 

A. No, sir. 

Q,. AYere not their operations in the night, as far as you know ? 

A. No, sir ; but if they had been in my neighborhood, I would have 
heard of them. 

Q. Were you out at night watching for them ? 

A. No, sir. 

Q. How do you know, then, that they were not out every night ? 

A. I never heard of them. 

Q. How about ther operations out in the country ? 

A. I live near the line, and I suppose I don't go to York more than 
once a year. 

Q. You know the Ku Klux were reported raiding about the County 
about that time? 

A. Not of my own knowledge. 

Q,. Do you know that Jim Williams made any threats? 

A. No, sir ; not to my knowledge ; I never heard him directly. 

Q. What was the common reports of the Ku Klux operations in that 
country ? 

A. On the north-western side there were reports of them. 

Q,. When did you first hear of them ? 



350 

A. It was, I think, in January. 

Q. Did you ever hear of Jim Williams burning any buildings? 

A. I heard of him receiving bribes for the purpose of burning. 

Q. Please answer my question ; who was it bribed hira ? 

A. I heard it was Mr. Rose. 

Q. Did you know anything about it ? 

A. Xo, sir; I didn't. 

Q. Did ybu ever hear of his burning a gin-house, or Ku Kiuxing 
T70men and children ? 

A. No, sir ; I never heard of that. 

Q,. Were you not in fear of them ? What did you do to protect your- 
self from him ? 

A. I did not do anything to protect myself individually ; I had ray 
property insured, to protect it from fire. 

Q. Did you never have it insured before ? 

A. jS^ever, sir, till the gin house was burned near us. 

Q. Did you ever lay out at night for fear his company would come 
and kill you ? 

A. We have watched at nights. 

Q. Did you lay out in the woods and hide away ? 

A. Xo, sir ; we never hid away. 

Q. Did you, or not, know that the colored people laid out ? 

A. Not of my own knowledge. I had one or two in my employ, and 
they did not lay out. 

Q. Did you undei-staud that they did lay out, all about you ? 

A. Kot those in my employ, or my nearest neighbors. 

Q. Did you tell your colored people they would not be raided on if 
they staid at home? 

A. No, sir. 

Q. You did not feel afraid of the Ku Klus yourself? 

A. No, sir ; I do not know that I did. 

Q,. You voted the Democratic ticket a year ago, did you not ? 

A. Partly. 

Q. Did you vote the Eepublican ticket ? 

A. I voted the Reform ticket ? 

Q. Did you consider that a Democratic or Republican ticket ? 

A. There were some Republicans on it. 

Q. Judge Carpenter was on it, w^as he not? 

A. Yes, sir. 

Testimony objected to. 

Ml'. Corbin. There is good reason for asking that question. We have 
shown that the Ku Klux were raiding on Republicans; we would like 
to find a Democrat that was raided on. 



351 

TESTIMONY OF W. H. ATKINS. 

W. H. Atkins, a witness for the defense, being duly S'tvorn, testified as 
follows : 

Direct Excmiinatlon by Mr. Stanhery. 

Q. Where do you live ? 

A. At York District, about nine miles this side. 

Q. Did you know Jim Williams ? 

A. I knew a little about him. 

Q. Did you live near him ? 

A. I lived about five miles from him. • 

Q. Have you heard him make any threats ? 

A. Yes, sii". 

Q. At what time? 

A. That was about last February. 

Q. Where were these threats made? 

A. I heard him make these threats at Mr. Gordon's mill. 

Q,. State to the jury what.those threats were? 

A. He said to me, one morning, when he came to the mill : " Mr. At- 
kins, I Avill tell you, the way to decide between the blacks and the whites 
is to go into the old field and fight it out ; and, by God ! if ray side gains 
the day, I am going to take from the cradle up ;" then he turned into the 
mill, and I did not see any more of hira. 

Q. Did you hear any more from him ? 

A. Ko, sir. 

Cross-Examination by Mr. Corbin. 

Q. You say this was last February? 

A. Yes, sir ; I think it was ; just before he was killed. 

Q. Ho\y long before he was killed? 

A. I think a week or ten days. 

Q. That was the way he intended to settle the difference between 
the white and colored people 'f 

A. Yes, sir. 

Q. What did you understand by it? 

A. I understood that he wanted to have some fuss. 

Q. Did you know the Ku Klux had been raidinc: around a lono- 

tune before that? 

A. I heard they had. 

Q. Was it not that fuss he referred to? 

A. He didn't mention the Ku Klux. 



352 , 

Q. Did you understand him as referring to the Ku Kkix? 

A. No, sir. 

Q. "With whom, then, was the fuss ? 

A. To that he did not say. 
' Q. Did he threaten anybody living around there ? 

A. No ; he didn't. 

Q,. AYas there not some disburbance up there in the month ? 

A. No, sir. 

Q. Are you a member of the Ku Khix organization? 

A. No, sir; I am not. 

Q. Do you know anybody who is? 

A. No, sir; I do not. 

Q. Do you know this defendant, Robert Hayes Mitchell ? 

A. No, sir. 

Q. Did you never see him before? 

A. Not as I mind of. 

Q. Did you never hear of him ? 

Q lestion objecled to, and withdrawn. 

Q. What do you know about the Ku Klux raiding about the 
country ? 

A. I heard that they were about. 

Q. "When did you first hear that they were about? 

A. I first heard about it last Christmas, before December, 

Q. What did you hear they were doing? 

A. I did not hear what they were doing. 

Q. Did you hear they were out nights whipping colored people? 

A. I didn't hear of their doing that. 

Q. You say you did not hear that ? 

A. No, sir ; I did not. 

Q. What did you hear? 

A. I heard that the Ku Klux were raiding around. 

Q. On whom were they raiding? 

A. They didn't say whom. 

Q. You say you did not know what was meant by raiding around 
at night? 

A. I didn't. 

Q,. Did thej' visit you ? 

A. No, sir. 

Q. Do you know that the colored people were very much fright- 
ened ? 

A. No, sir ; I don't. 

Q. Did you know the colored people lay out night after night, and 
month after month, for fear of them ? 



353 

A. No, sir; I never heard of any of them lying out. 

Q. Did any of them work for you, or Avith you? 

A. No, sir. 

Q,. Then you don't know much about the fear among the cohered 
jDeople ? Answer that. 

A. No, sir. 

Q. "Were you afraid of Jim Williams and his company ? 

A. I cannot say that 1 was. 

Q. You don't think there v.as any occasion for being afraid of 
them ? 

A. Well, I don't know. 

Q. Did you think that Jim Williams was going to kill " from the 
cradle up ?" 

A. I don't know. 

Q. But he projDosed to fight it out in the old field, in a manly way, 
did he not? 

A. Yes, sir. 

TESTIMONY OF C. J. FRYE. 

C. J. Frye, a witness for the defense, being duly sworn, testified as fol- 
lows : 

Direct Examination by Mr. Stanhery. 

Q. Where do you live? 

A. In Rock Hill, York County. 

Q. Do you know Mr. Ganthorpe ? 

A. I do not. 

Q. Do you know anything about the organization of 1868 ? 

A. I belono^ed to the ore-anization called — 

Q. What was the organization called ? 

A. Some called it the Council of Safety ; others called it the Ku 
Klux. 

Q. Had it the same constitution that this organization had ? 

A. In this organization there is something about death! death!! 
death ! ! ! That is not the oath I took. I didn't take any such oath as 
that. 

Q. You say you joined that organization in 1868 ? 

A. Yes, sir. 

Q. Was there any other organization in that part of the country ? 

A. No, sir ; not with white people — of colored people ; Loyal Leagues 
and the like> 

Q. The only organization you knew of was the one you belonged to ? 

A. Ycs, sir. 
23 



354 

Q. What was the object of that organization ? 

A. It Avas self-protection, in case there was any outbreak in the 
country. 

Q,. Had you a constitution and articles ? 

A. I really don't know whether there was or not. I went uj) and 
joined at Moore's Hill, about two o'clock in the day time — in open day 
light. I was told if there was any outbreak in the country, I was to be 
called up to go to it. 

Q. Did you tell any one of this ? 

A. I told Colonel Merrill. 

Q. YVHiat did you tell him? 

A. I told him I had joined that organization, and I told him that I 
was at another meeting at the yard, which he asked rae about, and the 
proposition was made to take arms from the negroes — old shot guns — be- 
cause they might do some damage with them. The organization was 
broken up. 

Q. Had that organization anything to do with the voting franchise ? 

A. I never heard anything of that kind, sir. 

Q. Are you a Trial Justice ? 

A. I am, sir ; under Governor Scott. 

Q. When were you appointed ? 

A. About the 15th day of last February. 

Cross-Examlnation hi/ 3ir. Corbin. 

Q. Will you please listen to this obligation ? [Mr. Corbin read the 
constitution and by-laws of the Ku Klux Klau.]. Is that the same ob- 
ligation that you had ? 

A. I am not able to say ; I am not able to say tliat that is the one, but 
I don't remember death ! death ! ! death ! ! ! 

Q. Do you remember that the object was to oppose the principles of 
the Radical party? 

A. I cannot say it was that, for I have been a square out Eepublican 
all my life. 

Q. Can you name anybody tliat belonged to it ? Who was the Chief? 

A. I don't rocolloot ; I think Mr. Iredel Jones officiated when I 
joined. 

Q,. Who else was there ? 

A. I think I went in with about twenty-five, but I don't recollect who 
they were. 

Q. Do you kno\y if that organization paraded one night after dark? 

A. Colonel Merrill told me so ; I do not know of it myself. 

Q. Do you know whether this organization, to which you belonged, 
ever went on a raid upon anybody. 



355 

A. Not that I know anything about, or that I ever heard. 

Q. Have you heard from members of tlie organizatiou that it did ? 

A. No, sir ; I heard something from members. One member told me 
that he had told Major Merrill. Mr. Ratteree told me that he had told 
Major Merrill about it, that he had raided ou the Ferrises. 

Q. What did they raid on Ferris for ? 

A. I djn't know; I was not there. 

Q. Who is Mr. Ferris ? 

A. He is a very clever gentleman, and lives above Rock Hill. 

Q. Is he a Republican or Democrat ? 

A. I don't think he takes any part in the Republican ticket. 

Q. Don't you know he voted the Republican ticket ? 

A. I do not. 

Q. Do know what they went there for? 

A. I do not ; I only know that Mr. Ratteree told me that he had told 
Major Merrill that he had been in that raid. ^ 

Q. Didn't they go there for a negro? 

A. I do not know. 

Q. Didn't Ratteree tell you that he was wounded in that raid ? 

A. Yes, sir. 

Q. Where? 

A. He had a little wound on the face. 

Q. What by? 

A. I don't know. 

Q. Did he not tell you he was shot'? 

A. He told me that he had got a wound, and that he had told Major 
Merrill about it. 

Q. You say that you do not know anything about the organization 
since that time. 

A. I do not ; I have not met with them since. 

Q. You say you never heard the constitution and by-laws read ? 

A. No, sir ; and never joined them. 

Q. Haven't you talked with Mr. Iredel Jones about being in that or- 
ganization ? 

A. Yes, sir; frerjuently. 

Q. Who Avas Chief at that time? 

A. I do not know. 

Q. He presided at the meeting you attended, did lie not ? 

A. Yes, sir. 

Q. Was not this organization just previous to the election ? 

A. I joined it in July, 1868, and that was the only time I was in it. 

Q. Have you any knowledge at all what its political purpose was ? 



356 

A. I really didn't understand thiit there was any political purpose 
in it. 

Q. Did you not understand that it "was an organization in aid of the 
Democratic party ? 

A. Well, sir, I certainly did not, and never understood that it was in- 
tended to intimidate any man at the election. 

Q. Have you not understood since that it was so? 

A. I have heard so. 

Testimony objected to. \ 

Q. (by Mr. Johnson). "Were you ever arrested ? 

A. I never was, by force of arms ; I had been requested to appear at 
Colonel Merrill's office, which I did. 

Q,. (by Mr. Johnson). You were not kept by Major Merrill after the 
explanation ? 

A. ISTo, sir. 

Q. Yoy were not arrested, were you ? 

A. No, sir ; I had a very pleasant interview with him for two or three 
liours; then left on my own business. 

The defense rested. 

TESTIMONY OF ANDY TIMJIS. 

Andy Timms, a witness for the prosecution, in rebuttal, testified as 
follows : 

Direct Examination hy Mr. Corhin. 

Q. Do you know about a meeting called by Avhite and colored people 
down in that neighborhood in reference to those guns ? 

A. Yes, sir. 

Q,. State what the object of it was, and who were present? 

A. Mr. Moore and Mr. Robert Moore and Mr. Crawford, and I was 
there myself, and there were many colored men ; the object of the meet- 
ing was to call upon the whites — to call upon the Democratic party — to 
know wiiether the guns were a bone of contention in that section. 

Q. When was the meeting held ? 

A. It Avas held on ths 9th or 10th of February last. 

Q. What took place at that meeting ? 

A. The result of that meeting vras that, as far as the guns was the 
cause of the excitement, they said it was not so. Crawford said that he 
was afraid the guns would get into the hands of foolish young men, who 
would go shooting in the woods. Crawford asked Jim Williams if he Avas 
willing to give up the guns, and Mr. Russell also asked if he was willing- 
to give up tlie guns. Said he, " I will take charge of them, if you give 



357 

them up." Said he, " "We can see that Jim Williams is not willing to 
give up the guns until he is ordered to do so by Governoi' Scott." 

Q. What did they say about being afraid ? 

A. They said they were not afraid of the guns, except in the hands of 
foolish boys. That is what Captain Ed. Crawford said. He said he was 
not opposed to us settled men having them, who knew how to shoot with 
them. Said he : " They are not fit for hunting guns ; they would cut 
rabbits, all to pieces." 

Q. How did that meeting happen to be called ? 

A. They had taken to calling in the Yorkville guns. We went to 
Yorkville, Mr. Bratton and Jim Williams, to consult v/ith Russell, what 
he thought about the guns in the country; Russell proposed to me to call 
in jMr. Smith and we would appoint to have a meeting, and call the most 
prominent citizens to see if we could have a settlement. I applied to 
Dtlajor Hart to write the letter, [pointing to Major Hart] ; he wrote the 
letter to ask the gentlemen to meet us. 

Q. What took place at that meeting ? 

A. Weil, sir, it was pleasant and agreeable. 

Q. Was there any contention or quarrelling, and a great deal of trouble 
to get there ? « 

A. Jim Williams said he was willing to give up the guns if he got an 
order from Governor Scott. 

Q. Now tell us about that Mr. Mendinhall interfering with Jim Wil- 
liams' company on drill, and being arrested? 

A. I was not present at that time; Williams .and Bratton were pres- 
ent. 

Q. '^^'"ere you intimate with Jim Williams? 

A. Yes, sir. 

Q. Did you ever hear him make any threats ? • * 

A. I did not, sir. 

Q. Did you ever hear of his making any threats ? 

A. I did the third night, when they made a raid on the Scott guns. 

Q. Did you ever hear of it before he was killed ? 

A- I did, sir. 

Q,. Who did you hear it from after ? 

A. I heard it from Edward Crawford ; said Jim said he would kill 
from the cradle up ; said he, " I reckon he is now killing from the cradle 
up ;" said he, " I suppose you have heard that ;" said I : " Xo I never 
heard it till I heard you say so." 

Q. What class of persons reported these things about Jim Williams 
after he was dead ? 

A. I heard it from white people, and some few Democratic niggers. 



> 



358 

Q. Do you know whether the colored people were hiying out then to 
keep away from the Ku Klux ? 

A. Some of them were watching and hiving out before Williams was 
killed, but not many ; but it came that every man had to lie out. 

Q. How long was it that every man had to lay out ? 

A. It was some five or six weeks that they layed out ; some in the 
thickets and the woods, and all about. 

Q. What was that for ? 

A. For fear they would be killed by the Ku Klux Klan. 

Q. What stopped their lyir.g out ? 

A. There were meetings held in Yorkville, where they made the first 
compromise. 

Q. When was the first Ku Klux raid in York County ? 

A. I cannot say exactly; it was in the fall, that I first heard of it. It 
was after the election. 

Q. How soon after ? 

A. I don't remember exactly. 

Q. Was it some time before Christmas ? 

A. Yes, sii'. 

Q. When were the fires that were, generally reported — when did they 
take place ? 

A. It was after Christmas, except Dr. Allison's bui-ning ; I don't re- 
member exactly when that was. 

Q. Then all the rest were after Christmas ? 

A. I think they were, sir. 

Q. Did Dr. Allison tell you about the burning of the house ? 

A. Yes, sir ; he said he didn't believe it was burned by the colored 
i:>eople, from the tracks. 

Q. What did he say about the tracks? 

A. He said it was a No. 5 or 6 boot or shoe track, and that was too 
fine and neat a track for a colored man to wear. 

Q. Do you know what Jim Williams' general reputation for truth and 
veracity was, and as to being a quiet, peaceable citizen ? 

A. I never heard of him stealing or being in any way a quarrelsome 
man. 

Q. What was his reputation ? was it good or bad ? 

A. It was good, as far as I knew. 

Q. Did you ever hear anything against him till after he was killed? 

A. Till after he was killed ? That I never did, sir. 

Cross-Exanwiation by Mr. Slanhery. 

Q. When you went to Yorkville about the arms, what reason had you 
for going ? 



359 

A. We understood the Yorkville guns were called iu, and we ^Yent to 
sec about it. Williams and Allen and Bratton went with me to inquire 
about that. 

Q. Who did you meet ? 

A. We met a great many persons on that business. Russell and Sam 
Smith ^nd Jim Williams and I agreed, with others, to set a day and in- 
vite both parties to this meeting. This was in General Anderson's 
office. 

Q. Who is this Mr. Russell ? 

A. Dave Russell ; he lives at Yorkville. 

Q. Who is this General Anderson that you spoke of? 

A. General Anderson, who was sent up by Governor Scott. 

Q. Did you understand that Governor Scott had sent General Ander- 
son to receive the guns ? 

A. The Yorkville guns were called in while we were there. 

Q. Was he authorized to receive the guns ? 

A. Not to my understanding. 

Q. What did Russell tell you ? 

A. Russell didn't tell me that Anderson said so ; he showed no au- 
thority, and we did not propose to give up the guns ; I said if the guns 
were the bone of contention, I felt disposed to think it would be better to 
give them up ; but when we held the meeting we didn't find that the guns 
were the bone of contention. 

Q. When Russell asked Rainey to give up the guns what did Rainey 
reply to it ? 

A. That he would not give them up unless he had orders from Gov- 
ernor Scott. 

Q. Did he reply in that Avay, or did he curse Russell ? 

A. I do not think he did curse him. 

Q. Did he not use profane language? 

A. He was not a profane man, and I had not heard him curse for over 
a year ; not an oath. 

TESTIMONY OF P. J. O'CONNELL. 

P. J. O'Connell, a witness for the prosecution, in rebuttal, being duly 
sworn, testified as follows : 

Direct Examination by Mr. Corhin. 

Q. Did you know Jim Williams, sometimes called Jim Rainey ? 
A. Yes, sir. 

Q. What was his general reputation for truth, and being a quiet and 
peaceable citizen ? 



360 

A. As far as I knew, I think he ^vas a truthful man ; he was one o 
'the quietest and most peaceable men that I knew in York County ? 

Q. How long have you known him? 

A. I cannot really say; it was some time before the' last election, and 
during that time I always found him a genial, jovial and good-hearted 
fellow ; he was a peaceable man, and not disposed to disturb anybody. 

Q. Did you ever hear of his making threats of killing people fr i r t 
cradle up ? 

A. No, sir; I never heard him make any threats of that kind; I have 
spoken to him in regard to threats of that description, and always found 
him to be opposed to anything of that kind. 

Q. Did you hear these reports of him making threats after he was 
hung? 

A. I did hear reports to that effect. 

Q. From whom did you hear reports of these threats? 

A. I might mention the names of many; but I don't think anybody 
told me who was intimately acquainted with Williams. I heard he had 
made threats, but it was after he was killed ; they were made by persons 
who were, I thought, opposed to Williams. 

Q. Did you have any conversation with Jim Williams previous to his' 
death in reference to Ku Klux outrages? 

A. We did talk in reference to that, but more in regard to the feelings 
abroad, generally ; and he was opposed to outrages or anything of that 
kind. He was altogether opposed to it. 

Q,. Were the raidings going on at that time? 

A. I could not say ; there was some disposition to violence in York 
County at that time. 

Q. When did the Ku Klux outrages commence in York County ? 

A. It was last winter, as far as I can remember. 

Q. About what time did they commence ? 

A. About January last ? 

Q,. Did you hear of any raid before that ? 

A. I believe I did hear of their raiding before that. 

Q,. When did the fires that have been complained of occur; was it 
before or after the raiding? 

A. It was after the raiding. 

Q. Are you sure about that ? 

A. Yes, sir; that is my impression, 

Q. Do you know anything about the burnings, and who committed 

them ? 

A. No, sir ; I do not. 

Qi. Who was understood as doing the raiding upon the negroes at 
hi: tl:n ) i n York County ? 



361 

A. They were called Ku Klux. 

Q. State whether a reigu of terror existed among the colored people ? 

Question objected to. 

Mr. Hart. Ask the witness whether or not he was there. 

Q. Were you there at the time? 

A. I was not in York County during the summer, but I left when the 
Legislature met here. 

Q. Were you there at the fall election ? 

A. Yes, sir. 

Q. Did you return after the close of the Legislature? 

A. Not immediately afterwards. 

Q. Why not ? 

A. I had received letters that it would not be safe to return. I re- 
ceived a letter from my father that a raid was to be made upon my 
house. 

Q. Did you go back? and if not, why? 

A. I didn't ga back, because I thought I was going to be killed if I 
did. 

Q. By whom ? 

A. By Ku Klux ? 

Q. Are you a Kepublican ? • 

A. Yes, sir. 

Q. Why did you expect that they were going to kill you ? 

A. On account of my Republican principles. Nothing else that I 
know of. 

Q. Can you go back there now, safely ? 

A. Yes, sir. 

Q. How long since ? 

A. Ever since IMajor Merrill has got the Ku Klux into order. 

Cross-Examination by Mr. Johnson. 

Q. How came you to talk to Williams about threats of violence? 

A. 1 heard of threats of violence before the conversation. 

Q. What threats were they ? 

A. They were threats of a violent character, and threats to the mem- 
bers of the Republican party. 

Q. Did you hear of threats from Jim AVilliams ? 

A. Jim Williams said he was opposed to anytliing like retaliation. He 
understood there was an organization in York County, that was gotten 
up for the purpose of committing outrages upon the members of the Re- 
publican party, and that these outrages were to be deplored ; but cer- 
tainly that he was opposed to anything like retaliation upo i those par- 
ties. 



362 

Q. Did you apprehend at tliat time that there might be violence on 
the part of Jim Williams and other colored people ? 

A. 1^0, sir. Not from Jim Williams. 

Q,. Did you hear that houses were to be burned ? 

A. No, sir. 

Q,. At any time ? 

A. No, sir ; not in York County ; I didn't hear from any colored man 
that there were any houses to be burned. 

Q. Did you hear that there were any houses to be burned ? 

A. Some members of the Democratic party told me that colored peo- 
ple were combined to burn their houses and gin houses. 

Q. Were not a great many houses and barns burned ? 

A. I heard reports to that effect, but I do not know of my own know- 
ledge. 

Q. Did you hear of gin houses or barns of any Republican citizens 
being burned ? 

A. No, sir. 

Q. As far as you heard about the burning, it was confined to Demo- 
cratic owners ? 

A. I heard about burnings, but I don't know anything about them. 

Q. Do you know if there was any alarm in the neighborhood on the 
part of the white men ? 

A. They pretended to be alarmed ; but I don't believe that there was 
any actual alarm about it. 

Q. You say you had heard they Avere alarmed, but you don't believe 
it? ■ ^ 

A. I didn't say I heard that they were alarmed ; I had conversations 
with them, and they made pretense of being alarmed, but I didn't be- 
lieve it. 

Q. How do you know it was a pretense ? 

A. For tliis reason, that I did not believe that there was any white 
men in our County who were scared about the colored militia. 

Q. You think there was nobody scared, then ? 

A. I do not, sir. 

Q. Do you live in York County? 

A. Yes, sir. 

Q. How far from Yorkville ? 

A. Twenty -one miles. 

Q. How far from the house of Jim Williams ? , 

A. I could not say ; he lives at McConnellsvillc ; I do not know the 
distance. 

Q. Do you know where he lives? 

A. I do not know exactly. 



obo , 

Q. How long have you lived in that neighborhood ? 

A. I went up there to live in 1866. 

Q. I understand you to say that, although you w-ere told by some 
white men that they had fears about the burning of their houses — that 
you now tell the jury that you didn't believe it — that it was a mere pre- 
tense? 

A. AVheu you asked me the question, I understood you to ask if there 
were any fears in York County in regard to outrages ; I don't think 
there were any fears of that kind existing. 

Q. Please answer my question. I understand you now to say that you 
Avere told by white men that they liad fears that their houses would be 
l)urned, but that you didn't think they had any fears — that tlie whole 
story was a pretext ? 

A. I don't remember having said that, but I can say it now. 

Q. Did you not say it three minutes ago ? 

A. I don't know whether I did or not, but I can say it now% 

Q,. Did you not say that you believed the reports which you heard from 
wliite men, that they apprehended fear, was a })retext — and they had no 
fears. Was not that your testimony ? 

A. Their fears in regard to the militia were a pretext — that is vvhat I 
meant to say. 

Q. What did you say as to their fears about burning their houses? 

A. I expect that there might have been feai's about their burning their 
houses. 

Q. I thought you said they had told you they had fears about burning 
their houses ? 

A. I never had any conversation with them about burning their 
houses. 

Q. Had you any conversation about burning their houses ? 

A. I may have heard something in regard to these burnings. 

Q,. Did they express any apprehension at that time consequent upon 
those burnings? 

A. I believe they did, but those apprehensions were all visionary. 

Q. Did 3'ou not tell the jury just now in your opinion that they really 
did not entertain any such apprehension ? 

A. What I said was in regard to the militia. 

Q. Now, you tell the jury that when they told you that they feared the 
militia, you believe that was all pretext, and that they did not apprehend 
any danger ? i 

A. Yes, sir. 

Q. Do you belong to any militia company? 

A. No, sir, 

Q. Did you never belong to one ? 



364 

A. I was a Colonel of militig. ; but I resigned. 

Q. Had yon any military command ? 

A. I was Colonel of a regiment of militia at one time ; but I resigned. 

Q. When was that? 

A. It was previous to the last election. 

Q. Do you mean the election of October, 1871 ? 

A. The last State election. 

Q. What companies composed your regiment ? 

A. I never took the trouble to find out. 

Q. "Was Captain Williams' company one of your regiment ? 

A. It is my impression that it was. 

Q. Have you any impression in relation to any other company belong- 
ing to your regiment ? 

A. There was one company at Yorkville belonging to my regiment. 

Q. How many more? 

A. I could not tell. 

Q. Did you ever call them out? 

A. No, sir ; never. 

Q,. When did you resign ? 

A. Immediately arms were sent up to Yorkville. 

Q,. You commanded them as Colonel when they were without arms? 

A. Yes, sir. , 

Q. What did you resign for ? 

A. Because I didn't like the position ; I thought it was too much honor 
without any pay. 

Q. (by Mr. Corbin). When did you come down to the Legislature? 

A. Generally about when the Legislature was called. 

Q. (by Mr. Corbin). How long was it in session ? 

A. Until March. . 

TESTIMONY OF J. H. "WHITE. 

J. H. White, a witness for the prosecution, in rebuttal, being duly 
sworn, testified as follows : 

Direct Examination hy Mr. Corbin. 

Q. Are you a member of the House of Representatives ? 
A. Yes, sir. 

Q. How long have you been a member? 
A. Ever since -the reconstruction in 1868. 
Q,. Were you re-'^lected last fall ? 
A. Yes, sir ; from York County. ^ 

Q. How long have you lived there ? Have you been a voter since the 
war ? Did vou know Jim Williams ? 



365 

A. Yes, sir; I knew liim very well, aud the people among wliom he 
lived. 

Q. What was his character as a peaceable, quiet citizeu ? 

A. It was always good. 

Q. Do you know anything about his making threats? Did you hear 
of his threatening to kill people from the cradle up? 

A. I never heard of it but since he was murdered. 

Q. From whom did you hear it after he vv'as murdered ? 

A. I don't remember ; it was generally talked of in the country among 
the white people. 

Q. From your knowledge of Williams, do you believe in such stories? 

Question objected to, and withdrawn. 

Q. Do you know anything about raiding by the Ku Klux? 

A. Yes, sir. 

Q. When did it commence ? 

A. The first raid that I heard of was about at the time of the Presi- 
dential election ; the very night before. 

Q. What raid was that ? 

A. It was somewhere near Wylie's Store. 

Q. Who did they raid upon ? 

A. There were half a dozen came into my house and told me of the 
circumstiince ; I told them we would go up to Mr. Rose's, who was the 
Trial Justice ; some parties were arrested there ; I think, most probably, 
cue of the Leecher's were arrested on the charge. 

Q. What was the next raid ? 

A. I think the next raid, of any consequence, was the one upon Tom 
Humphrey. 

Q. When did that occur? 

A. Some time last December. 

Q. Did you know Tom Humphrey ? 

A.. Very well, sir. 

Q. What was his politics ? 

A. Republican, or Radical, as they call them ? 

Q. Did you know anything about the raid on Reuben Black, about 
that time ? 

A. I do not remember exactly when it occurred, but I do know when 
he came to York to report it. 

Q. When was that? 

A. The year before last ; I was in Court at the investigation, when the 
matter was turned over to the authorities. 
Q. Was that a raid by the Ku Klux ? 
A. It was said to be by the Ku Klux. 
Q.- Was it done in the night ? 



366 

A. Yes, sir. 

Q. Did you hear anything about the raid on Bill Wright ? 
A. Yes, sir ; that Avas the same year. 
Q. Was it a Ku Klux raid, in the night ? 
A. Yes, sir; it was said so. 

Q. What was the next raid made by the Ku Ivhix ? 
A. Some time directly after January, this year. 
Q. State whether they were general in the County last December ? 
A. Yes, sir, they were, about that time; there was a great deal of ter- 
ror amongst the colored people about that time ; I know it from the fact 
that the colored people thought that it would be best to declare martial 
law, and I know I opposed it, for, if we did that, we should have the Ku 
Klux organization fired ; I thought we had better call upon the United 
States for aid. 

Q. Do you know anything about burning school houses ? 
A. I heard that a great many school houses were burned. 
Question objected to. 

The Court. You have had a good deal of testimony about fires. 
Mr. Johu.jon. We have not offered any evidence as to the burning of 
schools. 

Mr. Chamberlain, xln attempt has been made to confine these burn- 
ino-s to ffin houses and barns ; we want to sI:o\y that colored school houses 
were burned as well. 

Q. Tell us if any school houses were burned, and how many of 
them ? 

A. I don't remember how many, but it was generally said that the Ku 
Klux burned them ; that was common report. 
Q. What reports did you hear? 

A. That one school house Avas Kurned down in the Bethel settlement, 
and another in the western portion of the County, that I know of 
Q. Do you know anything about the Green Pond school ? 
A. Yes, sir ; that was the one I spoke of; that, I believe, was burned 
clown three times. 
Q. Who by ? 
A. By unknown parties. 
Q,. Who was supposed to have done it? 

Question objected to. . 

A. That was the general supposition, that it was the Ku Klux. 
Mr. Johnson. We object to all that evidence. 

Mr. Corbin. We admit, if the Court please, that it would not be proper 
evidence if the other side had not introduced the same kind. 
Q. When were the first fires ? 
A. The first fires was in 1868 ; on the night of the Presidential elec- 



367 

tion a man's house was burnt down ; he said that he was told if he went 
to the election that he would be killed. 

Mr. Johnson. What sort of testimony is that ? 

Witness. The man came to me. 

Mr. Stanbery. Will the Court allow that to go on ; it was said by some 
man as to what somebody else told him. 

The Court. It is not evidence. ♦ 

Mr. Corbin. We don't care anything about it. 

Mr. Stanbery. We are tired of objecting. 

The Court. You are not more tired than the Court is, Mr. Stanbery, 
of the loose way of examination ; but I don't think it is the part of the 
defense to complain. 

Q. Do you know anything about Ellison's gin house being "burnt ? 

A. Yes, sir; heai-d of it. 

Q. When was that burnt ? 

A. Last year. 

Q. What time ? 

A. Some ttme in the Fall. 

Q. Did Dr. Ellison tell you anything about v^ho he believed burnt it ? 

A. Dr. Ellison told me that he believed it v/as white men burnt it, sir. 

Q. Why did he think so ? 

The Court. It don't make any difference why. 

A. The reason why 

The Court. Hold on. 

Q. Now, when was the next burning ? 

A. It vras during the session of the Legislature ; I don't exactly re- 
member. 

Q. After Christmas ? 

A. Yes, sir. • 

Q. New Year's? 

A. Yes, sir. 

Q. Was it before or after the raidiug by the Ku Klux ? 

A. The burning was done after the raiding — the killing and whipping 
— the killing of Tom Roundtree, and whipping a number of persons in 
Clay Hill and along the western portion of the County. 

Q. What means did the colored people generally take to protect them- 
selves from the Ku Klux raiding? 

A. They generally lay out. 

Q. What do you mean by that ? 

A. The}^ took to the woods fjr it. 

Q. When? 

A. Of nights, sir. 

Q. How long did t>.ey stay thero ? 



SG8 

A. Well, a number of them did lay out all winter, sir. 

Q. Do you mean to say that the colored people, at dark, went out to 
the woods, and lay down and slept there all night? 

A. Yes, sir ; they did. Many of them built up brush tents in the 
woods to protect themselves from these raids. 

Q. Were the school houses burned last winter, or this summer, or 
when? ' 

A. About the burning, I don't think there were any burnt in the sum- 
mer, but they were torn down. 

Cross examination waived. 

TESTIMONY OF GEORGE "WITHERSPOON. 

George Witherspoon, a witness for the prosecution, in rebuttal, being 
duly sworn, testified as follows : 

Direct Examination by Mr. Corhin. 

Q. Where do you live ? 
A. Yorkville. 

Q. How long have you lived there ? 
A. About twenty-eight or tvrenty-nine years. , 
Q. Voter there? 
A. Yes, sir. 

Q. Do you know Jim Williams? 
A. Yes, sir. 

Q. Know the people among whom he lived ? 
A. Yes, sir. 

Q. Were yen in his company ? 
A. No, sir. 

Q. AVhat was his reputation as a peaceable, quiet individual? 
A. I knew nothing else of him but a peaceable, quiet man. 
Q. Was that his reputation among his people ? 
A. Yes, sir. 

Q. You knew him intimately ? 
A. Yes, sir. 

Q. Did you ever hear him make any threats against the white jieo- 
ple? 

A. Never did, sir. 

Q. Did you hear of them ? 

A. I heard of them after his death. 

Q. Ever hear of thenl before his death ? 

A. Never heard of it before, sir. 

Q. From whom did you hear them after he was dead? 



369 

A. From Dr. Bratton — Dr. Rufus Bratton. 

Q. Who is he? 

A. He is a physician there in York, sir. 

Q. Do you know where he is now ? 

A. No, sir ; I do not. 

The Court. That is not rebutting testimony. 

Mr. Corbin. I want to know, for perhaps I might call him. 

Cross- Examination hy Mr. Stanhery. 

Q. As to Williams, what qualities had he that induced those persons 
of color out there to make him captain of the company ; what qualifica- 
tions had he 't 

Mr. Corbin. I don't see the materiality of that. 

Mr. Stanbcry. Yes, sir; he was elected. 

The Court. Did they make hiin captain ? 

The Witn.ess. That I cannot say, whether they made him or whether 
he was appointed. 

Q,. Had he such qualifications as would fit him for that position ? 

A. I suppose so. 

Q. Was he a man likely to do what he said ? 

A. I don't know, sir ; I always known him as a quiet and truthful 
man. ► , 

Q. Did you find him to be a man that was as good as his word ? 

A. I never found him any other way, sir. 

TESTIMONY OF LEWIS HOWSER. „ 

Lewis Howser, a witness for the prosecution, in rebuttal, being duly 
sworn, testified as follows : 

Direct Examination hy Mr. Corbin. 

Q. Where do you, live? 

A. I lived in York County the last ten years, but I have been from 
my wife ten months ; I have been down here. 
Q. How long did you live there before? 
A. I lived there ever since the year 1865. 
Q. When did you come down here ? 
A. Came down here about the 17th of March. 
Q. Why? 

A. The Ku Klux ran me off*. 
!Mr. Johnson. Is that rebutting ? 

Mr. Corbin. No ; I didn't know that he was going to say that. 
24 



370 

Q. Did you Imow Jim Williams ? 
A. I did, sir. 

Q. How long have you known hiiii ? 
A. Since the year 1865. 

Q. Do you know the people among whom he lived ? 
A. Yes, sir. 

Q. Do you know what his reputation was as a quiet citizen ? 
A. Yes, sir. 
Q. What was it ? 

A. Well, sir, he was a colored man ; he was an upright gentleman, in 
every respect, so far as I knew of him. 

Q. Was he a man that would make trouble ? 
A. No, sir ; he was not. 
Q. You knew him intimately ? 
A. I did sir. 

Q. Did you belong to his company ? 
A. I did, sir. 

Q. Did you muster with his company ? 
A. I did, sir. 
Q. Drill? 
A. Yes, sir. 

Q. Did you ever hear him make any threats against the 'white peo- 
ple? 

A. I did not, sir ; white nor colored. 

Q. Do you know whether he instructed liis company that they were 
to kill from the cradle up ? 

A. No, sir, I did.not ; never heard anything of the kind. 

Q. Have you heard it any time? 

A. No, sir ; I have not. 

Q. Since he was killed, have you heard that he was going to kill from 
the cradle up ? 

A. Yes, sir ; some time since he was killed. ^ 

Q. Never before? 

A. Never before, sir. 

Q. Whom have you heard it from since he was killed ? 

A. From citizens that lived in Yorkville before I came away. 

Q. White or colored ? 

A. The lady tl^at I lived with. 

Q. Who? 

A. JMary Williamson. n 

Q. A Avhite lady of Yorkville ? 

A. Yes, sir. 

Q. When did you commence to lay out? 



371 

A. I commenced to lay out after Jim Williams was killed, sir. 
Q. Were the colored people frightened there, and did they lie out at 
the same time ? 
A. They was, sir. 

Q,. Did they commence to lie out at the same time? 
A. They did, sir. 

Cross Examination- by Mr. Johnson. 

Q. You say you were a member of the company ? 

A. I was, sir. 

Q,. When did you last muster ? 

A. Last mustered about three weeks before last Christmas, sir — ■ 
a year ago. 

Q. Were you present at a muster a few days before Williams -svtis 
hung ? 

A. No, sir ; I was not. 

Q. Didn't you know there was a muster of his troop? 

A. No ; I don't remember. 

Q. Did you attend all the musterings ? 

A. I did when I was well ; but when I was sick I did not. 

Q. Were you sick in February or March last ? 

A. I was, with some chills, sir ; I was not fit for any duty towards 
mustering. 

Q. Then you don't know, in point of fact, that his company was mus- 
tered in February, before he was killed ? 

A. No, I do not. 

Q. Do you know anything about his refusing to give up his arms ? 

A. I do ; I was at the Cross Roads ; a meeting was called to meet 
there, between Yorkville and where I live, on a Saturday morning; there 
was two men from Yorkville that he said wanted him to give his arms 
up ; I went there to meet him. 

Q,. Were they given up ? 

A. Of course they gave them up ; they was not given up that day, but 
they gave them up smce. 

Q. Were they given up then ? 

A. No, sir; they was not. 

Q. AVhy not? 

A. Well, Jim Williams wouldn't consent to give them up. 

Q. How long was that before the poor fellow was hung ? 

A. To the best of my knowledge, I suppose, sir, more than about two 
weeks, as well as I can remember. 

Q. You were then well enough to be present at that meeting? 

A. I was. 



372 

Q. How far was the meeting from Yorkville ? 

A. I suppose about uiue miles, sir. 

Q. But you cannot say whether you were well enough to attend a 
muster if there was one that met on the Friday before he was hung ? 

A. No, sir ; I don't remember anything about his having a muster on 
Friday ; I am speaking of that what I remember ; what I don't remem- 
ber, I won't speak of 

Q. But you were present when the guns were refused to be given up ? 

A. I was present when he was called on to give up his guns. 

Re-Direct Exaviination. 

Q. Did you hear Williams give any reason why he wouldn't give up 
the guns ? 

A. I did, sir ; he told them that they hadn't given him any arms ; and 
he didn't know how to give his arms to th ^m. 

Q. Whom did he tell this to ? 

A. Mr. Edward Crawford, Mr. Joe Moore, Jim Pursue and David 
Russell, from Yorkville ; I was present and heard it all. 
, Q. Did you have any notice to muster the Friday before Jim Williams 
was killed ? 

A. I did not, sir. 

Q. Did you hear of anything of the kind ? 

A. I never heard of anything of the kind. 

Q. You lived very near Jim Williams ? 

A. Within a mile of him, sir. 

•Q. If there had been a muster you would have known it, wouldn't you ? 

Mr. Johnson. That won't do ; that is for the jury. 

Q. What do you say ? 

The Court. No, that won't do. 

TESTIMONY OP ALLEN WHITE. 

Allen White, a witness for the prosecution, in rebuttal, being duly 
sworn, testified as follows : 

^ Direct Examination hij Mr. Corbln. 

Q. Where do you live ? 

A. In Yorkville. 

Q,. How long have you lived there ? 

A. All my life. 

Q,. A voter there ? 

A. Yes, sir. 

Q,. Republican ? 



373 

A. Yes, sir. 

Q. Did you know Jim Williams ? 

A. Yes, sir. 

Q. Do you know the people among whom he lived ? 

A. No, sir ; I did not ; when he lived in York I knew Mr. Rainey, 
whom he belonged to. 

Q. How long have you known Jim Williams ? 

A. About seventeen years. 

Q. Do you know what his character was as a quiet, peaceable citizen ? 

A. As far as ever I knew of him, he was, sir. 

Q,. Did he have such a reputation as that? 

A. I never heard anything else. 

Q. Did you ever hear of any threats that he had made against the 
white people ? 

A. Never, until I heard of them here in the Court House, sir. 

Cross-Examination by Mr. Johison. 

Q. How far do you live from where he lived ? 

A. Where I live ; I live about ten miles now — not then — he used to 
live in York. 

Q. Wliat is the nearest that you have lived ffom Jim Williams' 
house ? 

A. Now ? 

Q. No ; at any time ? 

A. Well, I used to live, when he lived in York, about a quarter of a 
mile, but now it is about, where he lived, from York now, about ten miles. 

Q. How long have you lived where you now live ? 

A. Well I am living about eighty miles now of where 1 used to live. 

Q. I thought you lived now in the same place ? 

A. No, sir ; I am about eighty-five niiles from home. 

Q. What do you mean by that ; is y(5ur residence eighty-five miles 
from home ? 

A. I am at this time eighty-five miles from home, now. 

Mr. Johnson. I am a good deal more ; where is your home ? 

A. In Yorkville. 

Q,. How long have you lived at the home which you now have in 
York ? 

A. I have been living there about four years. 

Q. What is the distance of that home from where Williams lived ? 

A. About ten miles. 

TESTIMONY OF ANDY TIMMS. 

Andy Timms was re-called for the prosecution, in rebuttal, and testified 
as follows : 



374 

Direct Examination by Mr. Corhin. 

Q. AVhen did your company muster last ? 

A. Three weeks before Christmas, sir. 

Q. That the last regular muster of it ? 

A. That was the last time they was called together. 

Cross-Examination by Mr. Johnson. 

Q. Don't you know some of them mustered the Friday before Wil- 
liams was killed ? 

A. No, sir ; they did not. 

Q. You sure of that ? 

A. I know that. 
• Q. How? 

A. Because I was Company Clerk. They didn't go without my orders. 

Q,. Now, I understand you have stated positively to the jury that the 
last muster of the company, or any members of the company, was, when ? 

A. Three weeks before Christmas ; that was the last muster that was 
held ; some of the boys met, yes, sir, at the muster ground, but there 
was no muster ordered. 

Q. Did they meet afterwards ? 

A. There was no more meeting after that. 

Q. Did any of the boys meet there ? 

A. No, sir ; not that I heard or know, and I was right close to the 
muster ground, 

Mr. Corbin. I think we close here. Of course, except as to this point, 
the defense has still left oj)en, as to the character of the organization in 
1868. 

]\Ir. Johnson. The witness we expected is not here, and we will not 
ask the Court to wait ; we have finished. 

Mr. Corbin. If the Court pfease, it is suggested by my associate, and 
in that suggestion I concur, that the vast mass of testimony which has 
been adduced in this case would seem to require some little examination 
and arrangement before we go into the argument, and we would request 
the Court to adjourn until ten o'clock to-morrow morning. 

Ten o'clock, it was thought by the Court, might interfere with the 
meeting of the Grand Jury; and, therefore, Court was adjourned until 11 
o'clock, December 16. 



Columbia, December 16, 1871. 

ARGUMENT OF IIOX. D. H, CHAMBERLAIN. 

May it j^lease your Honors and Gentlemen of the Jury : 

You are now approaching the close of a long trial. The issue between the 
United States and this prisoner is now to be submitted to you upou the law 
and upon the evidence, as developed in this trial. You cannot, gentlemen uf 
the jury, be unaware that this case, in all its features, is a most remarka- 
ble and interesting one. You cannot be unaware that, not only the 
community in this State is interested in this trial, but that the entire 
country is watching, with unusual interest and anxiety, for the issue of 
this inquiry. You know, gentlemen of the jury, that not only your in- 
dividual interests, your safety, your protection, your security as citizens, 
is involved in this trial, but you know, before I remind you, that broader 
interests than yours, or those of this defendant, are to be determined by 
your verdict. 

I do not feel, gentlemen of the jury, as I have sometimes felt iu com- 
mencing an argument for the Government, and, in urging upon you a 
verdict of guilty against this defendant, that I am pressing for the life or 
the liberty of a man whose interests and whose defense have not been 
committed to competent and capable hands. I can have no fears, gen- 
tlemen of the jury, iu this trial, that everythiug that can make for the 
defendant, will not only not be presented to you, but I know that it will 
go to you commended with all the learning, and forced upon you with 
all the eloquence that the bar of the United States can boast. I shall 
not, therefore, feel that I can possibly exceed the measure of my duty 
to the Governmeat of the United States, if I present to you, in all 
their enormit}", and all their details, and with whatever of force I can 
command, all the circumstances and considerations which point to the 
guilt of this prisoner. And, gentlemen of the jury, not only that, but 
I am urged to a more than usual etibrt to discharge my full duty, by 
the consciousness of what I have already urged uj)on you, that this 
trial and its results stretch far beyond this defendant, and far beyond 
this Court room, and touch the vital interests of every citizen, and go 
down to the very foundations of our American liberty and government. 

Now, gentlemen of the jury, and if it please your Honors, I believe 
that there are no contested legal points about which il is proper that I 
should address myself to the Court, at this time. I am not aware that 
there is any contest between the counsel for the defer^se and ourselves, 
as to the nature and definitions of conspiracy, or what it is necessary 
for the Government to prove, iu order to maintain this indictment; 
and I shall, therefore, proceed to lay this case before you, as set forth 



376 

in the indictment and as established by the evidence v/hicli has been pre- 
sented in support of it. 

This indictment contains two counts against this defendant. The first 
charges him with conspiring with others .to violate the provisions of the 
first Section of the Act of 1870, by hindering and preventing divers male 
citizens of African descent from voting at future elections, and names the 
election to occur iu October, 1872, as the time when this prevention and 
this intimidation was to take effect. 

The second count charges hi.m with conspiring with others to injure, 
oppress and intimidate Jim Williams, because he had voted at a former 
election for a member of the Congress of the United States. That is the 
scope of this indictment. 

And now, gentlemen of the jury, let me tell you, before 1 proceed fur- 
ther, what a conspiracy is. A conspiracy is an agreement or combination 
between two or more persons, by 'their concerted action, to do an unlaw- 
ful act. You mark the definition, gentlemen of the jury. It is the 
agreement or combination to do the unlawful act. The unlawfiil act 
may never be done. No step may ever be taken to accomplish that 
unlawful pur})Ose; but the essence of Che ofiense is present, the crime is 
completed, wlien the agreement and combination is formed to do the un- 
lawful act. That is all that it, would be necessary, in this instance, to 
prove; simply that Robert Hayes Mitchell, this defendant, did conspire, 
combine, or agree with other persons, to do an unlawful act by their 
united action. 

'Now, gentlemen of the jury, I beg you to carry this definition through 
this examination and argument, that a conspiracy is not an act — an overt 
act — but that it is an agreement — an agreeing together with parties 
united to accomplish, by their unlawful action, an iinlaw'ful act or pur- 
pose. 

And now, gentlemen of the jury, before I go another step, let me Call 
your attention to another important principle, which must be carried in 
your mind throughout this examination. If there are twelve men, twelve 
individuals, in the conspiracy, when that conspiracy begins, they are, in 
the eye of the law, one man ; they l)rcal:he one breath ; they speak one 
voice; they wield one arm; and, therefore, it is, gentlemen of the jury, 
that the law says that the acts, the words, the declarations of one of 
these twelve individuals, while in the pursuit of their unlawful purpose, 
is the act, the word, the declaration of all. What, therefore, gentlemen 
of the jury, any one of the conspirators whom we shall connect with this 
transaction while they were on that raid, as it is called, said, or what one 
of them did, what any one of them declared to be the purpose of that 
conspiracy, is the declaration of Robert Hayes Mitchell, and every one 



977 

vvho joined with that conspiracy ; and it binds )\\m as much as if tlie 
words liad come from his own lips, or the acts from his own hands. 

Now, gentlemen of the jijry, in proving a conspiracy, there are two 
ways. We may prove a conspiracy directly, by bringing before you the 
written agreement — the conspiracy as recited and written out and agreed 
upon, in terms and in words ; or we may prove the conspiracy indirectly, 
by proving the acts, and the words, and the declarations of those who 
were engaged in the conspiracy. We enter, on this occasion, upon both 
methods of proof We have to lay before you now the agreement, writ- 
ten and exj)ressed upon paper ; and, after that, Ave have to lay before 
you the acts, the declarations, the things said and done by those who 
joined in this conspiracy. 

The evidence, gentlemen of the jury, in this case has been long and 
circumstantial, and I shall do you the honor, at the outset, to assume 
that your recollection of this evidence is as perfect as my own, and I 
shall not, except when I desire to call especial attention to some parts of 
this evidence, be in the least obliged to rehearse the testimony again to 
you. Our first method, therefore, of proving this conspiracy against this 
defendant is by asking your attention to the written agreement, to the 
terms and purposes of the conspiracy as they were written down and 
assented to by the conspirators, and as they were enforced by an oath to 
be carried into effect by this defendant and his fellow-conspirators. 

Now, gentlemen of the jury, I hold in my hand what the Government 
says is the written agreement, the terms and the purposes of this unlaw- 
ful combination in which this defenxlant was engaged. What is this 
paper ? What is the evidence that connects this paper with this defend- 
ant ? You "remember, gentlemen of the jury, the first witness that the 
Government put upon the stand testified that this paper was found 
among the private papers of one Samuel G. Brown, a citizen of York 
County. You remember that Mr. Albertus Hope, the second witness, 
testified that, in 1868, he expressed to Mr. James Avery — Major Avery — 
a desire to see the " ground work," to use his own expression, of this 
order, about which he had heard ; and that Major Avery gave to him a 
paper, in response to his request, containing the " ground work " of the 
order, and he delivered that paper to Mr. Samuel G. Brown. He also 
testified that this paper, which I hold in ray hand, and which has been 
presented to you, appeared, in its general terms, to be that which he re- 
ceived from Major Avery; and, further, that the paper itself which he 
received from Major Avery, and which he delivered to Mr. Brown, con- 
sisted of one sheet and a half sheet, as this paper does which I hold in 
my hand. 

Now, then, gentlemen of the jury, who was Samuel G. Brown, in his 
relation to this conspiracy ? We have the testimony of i\Ir. Guun that 



he recoguized Mr. Brown as a member of the Klan ; that he made the 
signs of the Klan, and Mr. Brown responded to those signs ; and that, 
in a conversation with Wesley Smith, another member of the order, they 
discussed the affiiirs of the order ; and it was then, in the presence of 
Mr. Gunn and Mr. Wesley Smith, that Mr. Brown made the declaration 
that he was a member of the order, and that his Klan — he claimed to 
be the Chief — " could kill and whip more niggers than any Klan in York 
County." 

Is that all of the evideijce, gentlemen of the jury, to prove that Mr. 
Samuel G. Brown was a member of the Klan ? No. Elias Ramsay 
meets him at Sharon Church, at a meeting of the Klan, when a new 
Chief is elected. Andrew Kirkpatrick, anotlier member of the order, 
meets Samuel G. Brown at Sharon Church ; and both of them have 
been heard ^upon the stand to testify to the presence of Samuel G. 
Brown upon that occasion. Samuel G. Brown, therefore, by his own 
proven statements, and by the testimony of two of his fellow-members, 
was a member of the order known as the PIu KIux Klan. 

This paper, therefore, gentlemen of the jury, in my hand, is taken 
from the private papers of a proved conspirator and member of the 
order. There is, in addition to this, evidence which identifies this paper 
as the same that Avas given by Major Avery to Mr. Albertus Hope, and 
by Mr. Hope to Mr. Samuel G. Brown, a member of the order. 

What, then, gentlemen of the jury, is this paper? It purports to be 
the oath, the constitution and by-laws of the Ku Klux Klan of the State 
of South Carolina. By the evidence which we have presented, it is 
shown to come from Major Avery ; and who is he? Let us pause a mo- 
ment to inquire. John Caldwell, Avho acknowledges himself to be a mem- 
ber of the order, states that Major Avery was the Chief of the Klan for 
York County. He does not state this u})on hearsay or report, but he tells 
you that he was present at the meeting of the order, at a store in the town 
of Yorkville, *vhere Major Avery was elected Chief of the County. This 
paper, therefore, gentlemen of the jurj^, comes from the Chief of the order 
of York County. It comes to Mr. Albertus Hope, who acknowledged 
himself to be a member of the order ; it goes from him to Mr. Samuel G. 
Brown, proved to be a member of the order; and from Samuel G. 
Brown it comes to you to-day. What does it purport to be? It declares 
itself to be the oath, constitution and by-laws of the Ku Klux Klan of 
South Carolina. This sheet and a half, gentlemen of the jury, is the 
" ground-work " of the order fur York County; from Major Avery to 
Albertus Hope, and from Albertus Hope to Samuel Q. Brown, all raem- 
bei's of the order, and now it comes to you. Therefore, I say to you, 
gentlemen of the jury, that you stand face to face with the written agree- 



379 

ment, ■with the detailed conspiracy, with which we propose to connect 
this defendant. 

Xow let us examine it, and see if it purports to be tlie constitution and 
by-lav>'S of the Ku Klux Khm. Let us see whether it is an innocent 
agreement, such as good citizens, \Yho hiok to the peace and welfare of 
the country, might well be engaged in, or whether it is not, upon its face, 
an agreement that seems to put to the blush every claim of the age to 
advancing civilization. Let us see whether it is not an agreement that 
ought to make us fear whether we have advanced yet beyond the age 
w^hen might was right, and nothing but power prevented the destruction 
of every liberty. 

What is this paper? and what are its purposes ? and how is this Ku 
Klux Klan to move on in its operations ? Why, gentlemen of the 
jury, the first provision of the constitution, to which I desire to call your 
attention, is, that Article 5, Section 1, requires that every member of this 
order should provide himself with a pistol, aKu Klux gown and a signa^ 
instrument.^ ISTote that, gentlemen of the jury. This conspiracy, or this 
agreement, is to be carried out, in the first place, by arming every mem- 
ber with a pistol, and by disguising him in a Ku Klux gown, and 
providing him with a signal instrument. Armed, disguised, and with 
a signal instrument, which shall make it unnecessary to use the human 
voice — such are the first features of this agreement ? 

jS^ow, what is the next significant feature of the agreement ? That any 
person who shall divulge, or cause to be divulged, any of the doings or 
purposes of this organization, shall suffer Death. Is that an innocent 
agreement, gentlemen ? Every member armed with a pistol, disguised 
in a gown, with his signal instrument, and if he makes known any of the 
afiairs of this order, he shall die! Does that look like innocence? I 
read further : " We oppose and reject " — What ? False principles and 
bad government? Unconstitutional laws ? Assaults upon our citizens? 
" We oppose and_^reject the principles." What ? Bad political princi- 
ples? There may be, and perhaps are, bad men in all parties, but this 
declaration says : " We oppose and reject the principles of the Radical 
party," and we arm ourselves with a pistol, we disguise ourselves with a 
gown, we carry our signal instrument, and we punish any man who dis- 
closes any of our aflTairswith death ! and all in order to oppose and reject 
the principles of the Radical party. 

What, gentlemen of the jury, have we come upon now in this agree- 
ment? It is an agreement to oppose a political party without discrimi- 
nation. It is not individuals of the party to whom we are to be opposed, 
but we are to " oppose and reject the principles of the Radical party." 
We are to do it with "pistols, and in disguise," and with our "signal 
instruments," and any man who tells of it shall die ! Now, then, look 



380 

at this agreement. We have discovered that there is an organization, 
armed and disguised ; we have a penalty of death for a divulging mem- 
ber ; and all, according to its own declaration, in order that we may 
oppose and reject the principles of a political party in the State. 

What next ? " No person of color shall be a member of this order." 
The lines are now narrowed, and this order is seen, not only to be a political 
organization, but it is found now to be aimed against those citizens of a 
particular color. " No person of color shall ever be admitted a member 
of this order." Why not ? Can we not suppose that persons of color 
may be on the side of "justice, humanity, and constitutional law, as be- 
queathed to us by our forefathers," in the language of this oath ? Yet 
no person of color, whatever his principles, whatever his life, shall ever 
be a member of this order. Here you reach the touch-stone of this con- 
spiracy, and you find it an armed, secret, disguised confederacy, punish- 
ing its members with death for divulging its secrets, and aimed against the 
Radical party, and excluding every person of color from its membership. 

What next, gentlemen ? " We are on the side of constitutional 
liberty, as bequeathed to us in its purity by our forefathers." AVhat does 
this mean ? I can put an interpretation upon such language which will 
give it an innocent meaning. If found in connection with an instrument, 
which bears upon its face, in every other respect, the seal and evidence 
of an innocent and laudable purpose, you might conclude that " consti- 
tutional liberty, as bequeathed to us in its purity by our forefathers," 
was an innocent phrase, expressive of reverence for the principles which 
animated and guided the fathers of the Republic. What, gentlemen of 
the jury, does it mean here in this charter of the Ku Klux Klan of 
South Carolina ? What does it mean here, interpreted in connection 
with the pistol, Ku Klux gown and signal instrument? Nay, gentle- 
men of the jury, what does it mean, interpreted in connection with this 
phrase, " No person of color shall ever be a member of this order ?" 
Gentlemen, the answer must come to every mind, and from every lip, 
that it means constitutional liberty, the liberty confen-ed by the Consti- 
tution of the United States, before those great amendments had been in- 
corjiorated into that Constitution — those great amendments which destroy 
slavery, and elevate the colored race to the rank and to the rights of 
American citizens. It means, " We are in favor of the Constitution as 
it stood, and as it was interpreted when slavery was the condition of two- 
thirds of the present population of South Carolina ; when, in place oj 
sitting u})on juries, and electing the officers of the State, you, the mem- 
bers of the colored race, stood at the whipping post, or crouched at the 
auction block." It means that the purpose of this Ku Klux Klan, 
whose cliarter contains those ominous words, is, by the express terms of 
their agreement, the restoration of the colored race to the condition, 



881 

civil, political and per.^oual, in which they stood -when our fathers framed 
the Constitution. 

Gentlemen of the jury, as I have already said, these apparently inno- 
cent words, interpreted in the light of the pistol, the Ku Klux gown, the 
signal instruruent, the penalty of death, the exclusion of every colored 
man from membership, become the plain and appalling evidence of a 
purpose no less vast and desperate than the destruction, the utter over- 
throw, nay, the turning back of the entire tide of our history since the 
opening of the last great struggle on this continent between the spirit of 
slavery and spirit of justice and liberty. Not only, therefore, gentlemen, 
does this instrument, which we are now examining, furnish a machinery 
for crimes; not only does it exclude an entire race, who form a majority 
of our fellow-citizens, but it declares, in the clause which we are now 
immediately considering, it declares its broad and general purpose to be, 
to destroy the civil and political and personal rights of our entire col- 
ored race. 

That, gentlemen of the jury, is what these conspirators have written ; 
but I need not tell you that no conspirators ever committed to paper the 
entire scope of their agreement. They don't trust it to any paper to dis- 
close to the world the extent of the purpose for which they combine; and, 
therefore, you don't expect that even this agreement, as it has now been 
presented to you, will disclose the entire purpose and plan and mode of 
operation of this Klan. But this clearly appears, and you will not for- 
get it, that under the written terms of this agreement, it is a secret, dis- 
guised, armed conspiracy, directed against a political party, and ulti- 
mately against the colored portion of our fellow-citizens. That, gentle- 
men of the jury, is what we .find to be the nature of this conspiracy, 
simply from an examination of its written agreement. 

I now come to another kind of evidence which will determine for you 
what was the purpose of this organization. It is the declaration and tes- 
timony of its own members. You have seen what there is in this paper; 
what they say they meant, in explicit terms. Now, let us see how this 
was interpreted by those who have acknowledged that they took this 
oath, and subscribed to this constitution, and who have become full mem- 
bers of this order. 

You. recollect the testimony of Mr. Osmond Gunthorpe ; that lie joined 
this order of the Ku Klux in 1868; that he thought, and was told, that 
it was an organization simply for self protection, and that he joined it 
with that intent; not that he himself apprehended any danger, but seeing 
that all his neighbors joined this mutual protection society, he, therefore, 
joined it himself And what does he tell you he found, when he got be- 
neath its written oath and constitution, was its purpose? He tells us 
that it was a political organization; that its purpose was to control the 



382 

elections, and while tliey had not yet risen to the height of killing negro 
voters, they even then proposed, in 1868, to go to the election at Rock 
Hill, and without the use of any great violence, still to control the elec- 
tion by crov\'ding away the Radical voter.? from the polls. You remem- 
ber, gentlemen of the jury, that this was in 1868, and that Osmond Gun- 
thorpe was then a member of the Ku Klux Klan, and that that was its 
purpose, as he discovered for himself after he had taken its oath and 
found out its principles and purposes. Now let us turn to the testimouv 
upon this point. I will read a portion of the testimony of Mr. Gun- 
thorpe. 

" Q. State wh-ithor you joined the Ku Kkix Klan, and when ? 

"A. -I joined it, sir, in 1868, in the month of August ; I am not certain 
about the date. 

"Q. Where? 

" A. Down near Ebenezer. 

" Q. In York County ? 

" A. Yes, sir. 

" Q. Who initiated you ? 

" A. Dr. Edward T. Avery. 

" Q. Can you give us the substance of the oath you took ? 

" A. No, sir ; I cannot. 

" Q. What was its general import, so far as you can recollect ? 

" A. I cannot recollect near all of it ; that we was opposed to the Radi- 
cal party ; and were to protect fellow-members' widows and their house- 
hold.^, female friends ; and, I believe, that was about all. 

" Q. And what was the penalty ? 

" A. The penalty for divulging the secrets of the organization was 
death. 

" Q. What was the mode in which the purpose of the organization was 
to be carried out — this oppo.sing the Radical party ? 

" A. I think it was the intention of the organization to control elec- 
tions. 

" Q. How were they to do it ? 

" A. At that time, the understanding I had was, to do it by intimida- 
tion. 

'•■ Q. Did you have any order to go out and assist in that business ? 

" A. No, sir ; I never received one. 

" Q. Did you receive any notice to go to Rock Hill ? 

" A. No, sir ; I received no notice, but I understood the day of elec- 
tion, in 1868, they were not to use any force, but by crowding the box 
they were to keep all from voting they could. 

"Q. All who? 

"A. All of the Radical party. 



OQO 

ooo 

" Q- Who were they to keep away from the polk? 

" A. All I understood was, they were to keep all the Radical party 
from voting they could, by crowding the ballot box. 

" Q. wiiat did you do then? 
I "A. I never went to the election at all. 

"Q. What did you do in reference to the order? 

" A. I left it, sir. 

"Q. Why? 

"A. Because I believed it was not what I thought it to be. I didn't 
understand, when I w^t in, that it Avas a political organization, and I 
saw it was, and it was on these grounds. 

" Q. What did you think it was befgre you got into it? 

" A. I thought it was an organization for the protection of each other, 
but not to interfere with any other party. 

" Q. W^hen you came inside of it, what did you find it to be ? 

"A. I found it to be a political organization, to try to control the 
elections for the Democratic party, at that time." 

That is his testimony of the purposes of this order in its young days, 
and, probably, before it had enveloped in its meshes the greater part of 
that community; but as far back as 1868, Osmond Gunthorpe, a member 
of that order, discovered that its principles were political, and that it in- 
tended to control the election in the interest of the Democratic party. 

I come now to the testimony of Kirkland L. Gunu, also a member 
of the order, who was in communication and conversation with mem- 
bers of the order ; a man of ifftelligence, and a citizen of York 
County; well informed, and acquainted with the persons and purposes 
of the order; and what does he tell you? He tells us, in precise 
terms, that Its purpose was political ; that it was aimed against the 
Radical party ; and especially against the colored members of the 
Radical party ; and that its mode of' operation was the killing and 
whipping of prominent Radicals, and the terrorizing and intimidation 
of the negroes generally throughout the country. And let me here 
call your attention, gentlemen of the jury, to the fact that this testi- 
mony stands totally uncontradicted. Our witnesses tell you that the 
purpose of the Klau was directly political, and aimed directly against 
the colored people, and that they carried out this purpose by whipping and 
killing. Now, if that was not the purpose of the order, where are its 
members, that they do not come forward to-day and rescue this imperilled 
brother? If it is a charitable association for mutual self-protection, 
where are its members, that they do not own their membership and keep 
their oaths to rescue a distressed brother? Is not this a brother Ku Klux 
in distress ? What hinders them from coming forward to-day and saying : 



384 

" "We are members of the order, and we will prove to you that our pur- 
poses wei-e innocent ; that vre did not aim against a political party, but 
simply to protect our lives, our children, and our friends, from negro 
outrages?" I will tell you why, gentlemen of the jury : It is because 
every one of them knows that if he puts himself upon that stand and 
confesses that he belonged to the order described in this papei", 
he is a felon, and goes to the Penitentiary. That is what keeps 
his brother Ku Klux from coming to rescue this imperilled 
brother; that is what keeps them out of this Court and from con- 
tradicting Mr. Gunthorpe's and Mr. Gunn's testimony. An innocent 
order, indeed ! Our eminent friends tell us it is a charitable aesociation ; 
and yet, when one of those members, y,'ho is simply in the execution of 
the purposes of this charitable order, is put upon his trial, they are as 
silent as the grave. Not one of them to-day dares to acknowledge him- 
self a member to save Kobert Hayes Mitchell, his brother, who belonged 
to that organization. Where are they? And echo answers, where ? The 
officers of this Court cannot find them, and those who sit here to-day, sit 
with sealed lips. 

Well, gentlemen of the jury, what does Mr. Kirkland L. Gunn tell 
you? He says that the order was political; that it was aimed against 
negroes, and that its purpose \Yas the killing and whipping and intimida- 
ting of the negroes of that County generally, in order to control the 
elections. 

For one moment, gentlemen, let me call your attention to some of the 
testimon}' of Kirkland L. Gunn : 

" Q- What was the obligation and purpose of the Klan ? 

" A. The obligation, sir, that I took was that I should not ,divulge any 
l^art of the secrets of the Klan that I had joined, and it was for the pur- 
pose of putting down Radital rule and negro suffrage. 

" Q. What was the general object and purpose of the order? 

" A. That was the purpose of the organization, sir. 

" Q. Have you ever heard the constitution and by-laws of the order 
read ? 

" Q. I heard it read, sir, when I was initiated. 

"Q. How were you initiated? Describe to the jury the process of 
initiation. 

" A. I was knelt down, sir, and the oath was read to me, and then the 
constitution and by-laws were read to me, sir. 

" Q.. Now, I want you to look at that constitution and b3--laws, and 
sav whether that was the constitution and by-lavrs of the order ?" 

[Handing to the witness the constitution and by-laws which we have 
hei*e.] 



385 

" Q. ]Mr. Gunn, you liave stated the general purposes of tlie order. 
Now, will you please state to the jury how those j^urposes were to be car- 
i-ied into effect?" 

Gentlemen of the jury, I am sure you do not forget that this witness 
is a Ku Klux — & member of the order. 

" A. Well, sir, that is known, I think ; but the ,way that I was told 
that they were going to carry this into effect was by killing off the white 
Radicals, and by whipping and intimidating the negroes, so as to keep 
them from voting for any men who held Radical offices. 

" Mr. Johnson. We reserve objections to that ; it is of no conse- 
quence. 

" Q. Pursuant to that mode of intimidating and killing voters, was 
there anything of the kind done" within your knowledge. ? 

" Mr. Stanbery. We object to that question — object to his saying what 
he was told. 

"The Court. We think the question may be asked, [To the witness.] 
State what was done in pursuance of the object of the order ? What 
was done pursuant to the purpose of the order, as you have stated it ac- 
cording to your knowledge i* 

"A. Their principle was to whip such men as they called Radicals, 
and men who were ruining the negro population, &c., and they murdered 
some. 

" Q. Well, Mr. Gunn, when did they do this? night time or day 
time? 

" A. In the night time, sir. 

" Q. State whether the organization was armed according to the by- 
laws ? 

" A. Yes, sir ; they were armed, 

" Q. What were their arms ? 

" A. Most generally pistols ; sometimes shot guns, muskets, &c, 

" Q. What is the Ku Klux gown, referred to in the by-laws ? 

" A. It is a large gown made — all that I ever saw was made of some 
solid colored goods ; I don't know what the color was ; it looked dark iu 
the night ; I never saw a gown in daylight, 

" Q. What were those gowns worn for ? 

"A. To disguise the person, sir. 

" Q. Were the purposes of the order to be carried out with the dis- 
guises on ? 

"A. Yes, sir. 

" Q. When the Klan was assembled to prosecute any of its purposes, 
such as whipping and killing, were they disguised or not? 

" A. Always, sir. 

" Q|. And always moving when ? 



386 

"A. In the uiglit." 

He then testifies that he himself Nvas ordered upon two raids. I now 
pause, for a moment, to consider the vahie of Mr. Gunn's testimony. It 
was developed, on the cross-examination, that J\lr. Gunn had been to 
Georgia, and had visited the Attorney General of the United States, 
and that he afterwards saw him and made the disclosures to him of his 
connection with the order, and of its purposes and methods. That he 
afterwards went to Washington, and, in an interview with the Attorney 
General of the United States, he received S200. Now, gentlemen of the 
jury, I understand that if a party giving testimony, or divulging secrets, 
is promised any reward, or any inducement is held out to him to make 
his confession or give his evidence, it tends to destroy and diminish the 
credibility of the witness. If it can be shown that, before he gave that 
testimony and made these disclosures, before he stated to the Attorney 
General, of the United States that he was a member of the order, and 
what its purposes were, he had been promised or received a reward ; but 
as to any evidence that Mr. Guun, previous to his disclosures to the At- 
torney General of the United States being promised, or that he received, 
any bride or offer of reward, there is none. He w^ent and made his dis- 
closures, and there is not a tittle of evidence in the case that his disclos- 
ures were prompted by any offer or expectation of reward. 

Kow, gentlemen of the jury, it was not improper for Mr. Gunn, who 
was a man of business, whose time had been occupied, and who had been 
diverted from following his occupation by disclosing this conspiracy, 
wliich, up to that time, had maintained its secrecy, to receive that sum 
of money ; nor was there anything objectionable on the part of the At- 
torney General of the United States in giving Mr. Gunn that money, 
under those circumstances. I say there was not, gentlemen of the jury ; 
and his testimony goes to you, to-day, free from any evidence that, be- 
fore he ha 1 made these disclosures, he had been enticed, in any way ex- 
cept by his own conscience and will, to make those disclosures. 

But, gentlemen of the jury, the testimony of Kirkland L. Guun may 
be left out of this case, and still the character of the agreement stands 
confirmed by the testimony of other witnesses, against whom even this 
suspicion, which is without legal foundation, cannot be raised. We have 
confirmed what I have argued to you to be the purpose and method of 
the Klan, by the testimony of Mr. Gunn, and I come now, gentlemen of 
the jury, to the testimony of Charles W. Foster, ^another witness, who 
confesses to you that he was a member of the order ; that he was, for a- 
long time, a member; and, unlike Mr. Gunn, that he did go upon raids ; 
unlike Mr. Gunn, that he received his interpretation from the acts of the 
order, and not from their declaration or from their written constitution 
and by-law's. Charles W. Foster was not only a Ku Klux, but he was 



an active Ku Klux. He went upon raids and executed the purposes of 
the Klan in overt acts. 

Let us look at his testimony : 

" Q. Do you remember the oath you took ? 

'•'A. I suppose I could. 

" Q. Tell us, as near as you can, the character of that oath ? 

" A. Well, sir, the first was to protect women and children, I believe ; 
put down Radicalism, put down Union Leagues, &c. 

" Q. What was the penalty, if anything, to the oath ? 

" A, The penalty was, if a man divulged any secret of the society, he 
was to suffer death ! death ! ! death ! ! ! 

" Q. Would you recognize the oath if you should hear it again ? 

"A. I suppose I would, sir. 

" Q. Listen to this. [Counsel here read the oath as read to Gunu.] 

" Q. What do you say to that obligation? 

" A. That is about the same that we had. 

" Q. Now, Mr. Foster, state what the general purpose of the order 
was? 

" A. The general purpose of the order ? 

" Q. Yes, as you understood it, practically carried into eifect ?" 

Then that question is objected to, and, finally, the Court says : 

" Ask the witness what the purposes were to be carried out. 

" Q. How were the purposes of the order to be carried out ? 

"A. Well, sir, generally, whipping those men who belonged to the 
League — members of the League. 

" Q. The Union League ? 

"A. Of the Union League — both white and black." 

And then he describes, as you, gentlemen of the jury, will remember, 
the various raids upon which he went; and, among others, he details the 
circumstances of the raid upon a man by the name of John Thomasson, 
and the question is : 

" Q. What was he accused of ? 

" A. He was called a Radical in the neighborhood ; he had taught a 
nigger school, and voted the Radical ticket. 

" Q. Was that the reason of your visiting him ? Tell us what they 
said ? 

" A. They called him out, and told him to let Radicalism alone." 

Gentlemen of the jury, you renjmember the testimony of Foster in its 

details, and I need not occupy your time in going over it again ; and 

now where do we arrive ? We have examined the wTitten agreement 

and constitution, and have found that it provided for a secret organiza- 



388 

tion, and tliat the penalty for divulging its secrets was death ; that it was 
armed; that it vras disguised; that it was aimed against the Radical 
party, and more particularly against the negroes of the Radical party. 
That is the written agreement. Now, what have we seen from the state- 
ments of these members of the order as to its purposes as developed by 
its acts ? Why that, in 1868, in its incii)iency, it aimed to control the 
election for the Democratic party, and that, in 3870 and 1871, by the 
testimony of j\Ir. Gunn and of Mr. Foster, and the testimony of other 
witnesses, vrhich you will remember, its purpose was still to control the 
elections; to intimidate the negroes and prevent them from a free exer- 
cise of their judgment in the matter of suffrage. 

Those are the two kinds of proof, gentlemen of the jury, that refer to 
this general conspiracy: the direct proof of the written agreement, and 
the indirect, but still more conclusive, evidence of the acts and purposes 
of the order, as stated to you by those who had taken the oath, who had 
gone upon raids, who had conversed with members of the Klan, and who 
knew it thoroughly in its purposes and operations. Now, what have we 
shown'? Wc liave, geutlemei? of the jury, first, the Ku Klux Klan — an 
armed, secret, political organization — sworn by an oath, under the pen- 
alty of death, to keep its secrets from the world ; carrying out its pur- 
pose, throughout the County of York, by the killing," whij^ping and in- 
timidation of the Radical party, and, more particularly, of the negroes 
belonging to that part3^ 

Gentlemen, against this evidence, what have we? If it be — as the im- 
pression has been sought to be made—if it be anything less than what I 
have described it to be, why has it not been explained to-day in behalf 
of this poor prisoner? That is what the Government says your Ku 
Klux Klan means. Why is it not denied ? Where is James William 
Avery, Chief of your County? Surely he could come here and tell you " 
that, in 1868, he organized a society for the mutual protection of himself 
and his neighbors. He could show you that its purpose was within the 
law ; and that all the acts for which he is responsible, or which he com- 
mitted, were sti'ictly within the law, and not an unlawful conspiracy. 
Where are the Chiefs of the Klan who enticed this poor prisoner ? Is 
yonder door barred to their entrance ? Why are they taking their ease 
iu foreign lands, where they cannot be reached ? Here is a distressed 
brother member, charged with being a member of a conspiracy to de- 
prive divers male citizens, of African descent, of their right to vote, and 
the evidence against him is that he belonged to this illegal organization. 
Can it not be explained? 

Gentlemen of the jury, not a member of the order stands here to con- 
tradict what we have proved to be the purpose of that order. Why, gen- 
tlemen, if this prisoner is to l)e defended, how much easier to have put his 



389 

defense upon the testimony of his fellow-members. What is the evidence 
they must submit if he is to be saved ? How much easier it would have 
been to do this, than to bring our distinguished friends here from a dis- 
tance to aid him ! With what ? not their testimony, which would acquit 
him, but simply their learning and their eloquence, to pei'suade you that 
this testimony is not sufBcieut to convict. They are under no obligations. 
They have taken no oath to protect and defend fellow Ku Klux ; they 
are .not knights errant ; and they do not come here to-day for love, but 
they come here in the exercise of their profession ; while all those who 
swore Vv'ith Robert Hayes Mitchell that they would stand by and protect 
their fellow-members are nowhere to be found on this day of a brother's 
trial. 

Now, gentlemen of the jury, this conspiracy, for which we are prose- 
cuting this defendant, is the geoeral conspiracy, which we have proved is 
embraced by the agreement and statement of members of this order. 

I now come to the second division of this argument, which is the spe- 
cific occasion on which this general conspiracy, embracing among its mem- 
bers this defendant, went upon the practical execution of their agreement. 
We come now to the 6th day of March, 1871, We are to see whether 
Robert H. Mitchell, this prisoner, with the others named in this indict- 
ment, did, on that specific occasion, undertake to carry out this general 
purpose which we have described in the agreement, and by the statements 
of acknowledged members. 

You remember, gentlemen of the jury, the story of the Jim Williams 
raid; that it was on the night of the 6th of March, 1871. You remember 
the testimony of Elias Ramsey, of John Caldwell, of Andrew Kirk- 
patrick, of Samuel Ferguson— all of them members of the Klan, and all 
of them present on that occasion. You remember the meeting at the 
Briar Patch, and the conspirators there assembled, going to the cross- 
roads, near Squire Wallace's, where they met the four Shearer boys, and 
where this prisoner, Robert Hayes Mitchell, first appears. You.remem- 
ber that the four Shearer boys were sworn into the order at the cross- 
roads, near Squire Wallace's, and that then they took up their march. 
Here, gentlemen of the jury, we have the conspiracy literally and visibly 
in motion. This general conspiracy of the Ku Klux Klan takes up its 
line of march for the accomplishment of its purposes. 

And now comes the evidence which points to this dcfendamt as g!liilty 
upon this indictment. Now mark, near Squire Wallace's, their ranks 
are recruited by this defendant, and they take up their line of march, dis- 
guised, marching two by two, under the lead of Dr. James Rufus Brat- 
ton, upon an innocent undertaking, upon a charitable errand ! No harm 
intended to any one, but simply protection against those horrible out- 



390 

rages of the negro militia! And here is James Rufus Bratton, the leader 
of that moving conspiracy. They come to McConnellsville ; they arrive 
at the plantation of James Moore ; they knocked at the door of Gadsden 
Steele, a colored man ; and now remember, gentlemen of the jury, that 
every act and every word of any one member of that marching conspi- 
racy, is the act and word of every other member of that marching con- 
spiracy. If the humblest man who rode in that party did an 
act, or uttered a word, it is the act and the word of every other man 
who formed a part of that conspiracy. 

They come to the door of Gadsden Steele, on the plantation of James 
Moore ; they bring him forth and question him about his gun, and not be- 
ing satisfied with his answer, they take him to Mr. Moore himself, and 
calling him out, they ask him about the guns. He says that Gadsden 
has no guns. 

" Well, what ticket did he vote ?" Nothing political ! Self-protection ! 
Charity ! Mr. Moore says I will not tell a lie for he — " he voted the 
liadical ticket." And the voice now comes forth from that group of 
conspirators, " There, God damn you, we'll kill you for that." Not po- 
litical ! Only a search for guns ! All because of the panic among the 
white people ! Yet Gadsden Steele's ofiense, for which he is promised 
death, is that, by the statement of Mr, Moore, he voted the Radical 
ticket ! Who uttered those words ? No matter who uttered them ; some 
one of those disguised men, there in front of Mr. James Moore's house, 
uttered them, and the voice v/as the voice of the conspiracy ; every man 
uttered those words; they had but one breath — one utterance. "We 
will kill you, because you voted the. Radical ticket." 

What now? Gadsden Steele is told to mount a mule and go with 
them, and conduct them to Jim Williams' house. He mounts the m\ile 
and goes a short distance. He is then put down, and two men, who are 
riding with them — disguised Ku Klux, on this Jim Williams raid — then 
turn to him, and point their guns at him, and then, gentlemen of the 
jury, they declare the whole purpose of that night's raid. They say to 
him, " We are going to kill Jim Williams, and we are going to kill all 
you damned niggers who vote the Radical ticket." Whose voice Avas 
that ? No matter ^hose voice it was ; it was the voice of the conspiracy ; 
and yet we are told this was not a conspiracy to interfere with anybody's 
voting! But they say, " We are going to kill Jim Williams, and we are 
going to kill all you niggers that vote the Radical ticket." That is the 
voice of the conspiracy — not of Rufus Bratton only, but of Robert Hayes 
Mitchell. That is in evidence before you to-day as the pui-pose of every 
man who rode on that marching conspiracy. 

Well, gentlemen of the jury, follow them. They pass on; they turn 
aside from the pu1)lic highway, and cross the field ; they halt in a piney 



391 

thicket and dismount ; a detail is ordered to go forward ; the detail is 
made up, and they put on a disguise, according to the testimony. From 
half an hour to an hour, while they are absent, nobody hears anything 
from thetn, except Elias Ramsay, who heard vrhat he thought were the 
cries of a woman in distress. They return, and the order is given, 
" Mount, mount, and let us be off." 

After they have moved away, some of these conspirators learn, for the 
first time, that Jim Williams has been killed. John Caldwell rides to 
the head of the column, and asks Dr. Rufus Brattou what they had done 
with the nigger, or where the nigger was. His reply is, " lie is in hell, I 
expect." He draws out his watch, and looks at it by the light of the 
moon, and says, with a coolness that I think was never excelled, "Let us 
make haste; we have got two or three more to visit yet to-night.'' 
He has only hung one negro, and he is going to visit two or three 
more ? 

You see here, gentlemen of the jury, as you will, perhaps, never see 
again, the terrible power of organization. Probably no one, no two, no 
three of that party could have been induced to commit that murder ; but, 
under the cloak and sanction of this vast organization, the responsibility 
of crime was divided until it was not felt. Murder, violent murder, ex- 
cited no compunction, because behind Rufus Bralton was a column of 
seventy men, who were to divide the responsibility with him. This is the 
terror, gentlemen, of conspiracy. That is why these terrible combinations 
are made possible, because no man in that seventy felt that he, himself, 
had murdered Jim Williams. But the deed is done, the secret is safe, 
and every man says, " We are all sworn to secrecy." " Williams is dead, 
and the world will never kiK)W who hung him." Ah! gentlemen of the 
jury, as a more eloquent voice than juine has said, " That was a dreadful 
mistake. Such a secret can be safe nowhere. The world has no nook 
or corner where the guilty can bestow it, and say it is safe." And here, 
to-day, after months of delay, you stand face to face with one of the men 
who joined in that conspirac)' to kill Jim Williams. 

Then, gentlemen of the jury, follow them as they leave that piney 
thicket and march again upon the highway. We know not where else 
they went, but we do know that, on their return, they visited the house 
of another colored man, whose name is Hiram Littlejohn, and who has 
testified before you. Gadsden Steele tells you what they were going to do 
as they marched down to Jim Williams'. Hiram Littlejohn tells you 
their purpose as they returned. They called him forth, and took from 
him his gun, and then told him: "We have killed Jim Williams; and 
we intend to rule this country or die. When you vote next time, 
vote the Democratic ticket." Whose voice was that ? It was the 
voice of the conspiracy, and of every man who rode with it. Vv^hat 



392 

docs it say ? " "We have killed Jim Williams ; and we intend to rule 
this country or die. The next time you vote, vote the Democratic 
ticket." 

Now, gentlemen of the jury, " order reigns in Warsaw," and York 
County is safe ! All other sections of the country had already been sub- 
dued, and only in this one belt of country, where lived this terrible Cap- 
tain of the negro militia, only there was Radicalism unsubdued. But now 
the head and front is gone, and safety is restored to the Avhite people of 
York County ! Why, gentlemen of the jury, panic among the white 
people! — fear of the negro militia! — why didn't they tell Gadsden 
Steele — why did they not tell Hiram Littlejohn — that he was never 
again to join the negro militia? that he must quit Jim Williams' com- 
pany? They said nothing of the kind, but passed on, with their guilty 
secrets. 

Now, gentlemen of the jury, what evidence can be more complete? 
Here is the Avritten agreement; here are declarations of members of the 
order ; and here is the specific occasion on which these Klans assembled ; 
and here are their purposes disclosed on the night of this raid by its 
own members, while going and while returning. 

Now, gentlemen, this defendant was there ; he was a member of the 
Ku Klux Klan ; he had taken its oath ; he joined in this raid ; and the 
acts and declarations of his co-conspirators are his acts and declarations. 
It has been established that Robert Hayes Mitchell was a member of the 
party; that he, went upon this Jim Williams raid. And there, gentle- 
men of the jury, is the end of our testimony with reference to the first 
count of this indictment, which charges that Robert Hayes Mitchell, 
with others, conspired to hinder and j^revent divers male ciiizens, of 
African descent, from the enjoyment of their right to vote at future elec- 
tions. Gadsden Steele and Hiram Littlejohn so testify. We say nothing 
about others whom they visited ; we say nothing yet about their purpose 
in the actual killing of Jim Williams. But here is a conspiracy which, 
by its written agreement, and the understanding of its members, is aimed 
against negro Radicals ; and here it is in motion, going against Gadsden 
Steele and against Hiram Littlejohn, for the express and avosved purpose 
of affecting their votes ; of preventing them froi'n voting or from exer- 
cising their free choice at future elections. 

We come now, gentlemen of the jury, to the second count of this in- 
dictment, which charges, in substance, that this defendant, with others, 
conspired to injure and oppress Jim Williams, because he had voted at 
previous elections, and, in particular, bei^ause he had voted for A. S. 
Wallace as a member of the Congress of the United States. It is, gen- 
tlemen of the jury, upon this count of the indictment, and with reference 
to the intent of these conspirators, as they went to the house of Jim Wil- 



393 

liains, that the chief controversy depends. Did they go there to injure 
and oppress Jim Williams because he voted the Radical ticket? or did 
they go there to put him out of the way because they were in terror 
from his threats, and from his position as a captain of a negro militia 
company ? 

In the first place, it is no longer to bo disputed that this was 
a Ku Klux raid. All the men who went there ou that night were, be* 
youd controversy, members of the Ku Klux order. They were there* 
therefore, we must conclude, upon some purpose which required or justi- 
fied the presence and the action of that order. As we have seen from 
the constitution and by-laws of the Klan, but more particularly from the 
statements of its members, the purpose of the order was to control or 
effect the elejtions, and not to prevent the negro militia from remaining 
in the County, or to disarm individual negroes, except so far as their 
being armed may have been supposed, in the minds of these conspirators, 
to have contributed to their strength and determination as Radicals. 

So much, gentlemen of the jury, is not doubtful, namely: That this 
Avas a Ku Klux raid, and that the leading and prevailing and constant 
purpose of this order was to intimidate the negro voter, and, if we were 
to admit, gentlemen, at once, that they did go there, on this occasion, to 
disarm this captain of a negro militia company, and to take his life, it 
would still be for these conspirators to show that it was not for the sole 
purpose of terrorizing that community on account of negro Radicalism. 
That has been shown, abundantly, to have boen the main motive and 
continual object of the order; and if, on this occasion, their purpose was 
no more than simply to disarm the negro militia and kill this captain of 
a militia company, because he was a captain, then you will require con- 
clusive evidence that, on this occasion, they were not still attracted and 
moved by their constant and controlling purpose, through the intimida- 
tion of this negro militia company, the disarming of these negro Radi- 
cals and the killing of their captain, to put down Radicalism itself. 
The constitution of the order tells you that that was its purpose, and the 
members of the order tell you that that was its purpose, and what evi- 
dence, gentlemen of the jury, have you that, on this occasion, while the 
specific act that they did was the killing of the captain of this militia 
company, and the taking away of guns from the members of that com- 
pany, it was not still in pursuit of that same purpose for which Gunthorpe 
and Gunn and Foster told you the organization originated and existed 
in York County ? 

Let us look, gentlemen of the jury, for a moment, at the operations of 
this Klan. "We hear but little of it, except here and there, until after 
the election of J 870. It is in evidence, however, that the organization 
existed as early as 1868, and even prior to the fall election of that year 



394 

but it felumbered, so far as we know, for tlie most part, and did not man- 
ifest itself in overt acts. But, you know, gentlemen, that after the 
election of 1870, the Klan immediately commenced its active operations 
in that County. They went forth then, having completely failed in that 
election, even under the persuasion of the candidates of the Reform party, 
to alienate the colored people from their allegiance to the Republican 
party ; they then entered, I say, upon their active crusade, through this 
organization, for putting down Radicalism. It is in evidence that all 
over that County — north, south, east and west — radiating constantly from 
the town of Yorkville, where sat James William Avery, the chief of the 
County — prior to the Jim Williams raid, negroes had been whipped and 
had been killed ; that a state of terror had arisen which drove from 
their homes at night the greater part of the negro population of that 
County. Even Mr. Lowry, a witness for the defense, tells you that, upon 
his plantation, lying almost within the charmed circle of Jim Williams' 
militia company, the panic Avas so great among his own negroes, that he 
could not restore confidence, and they fled their houses at night for 
weeks, for fear of the Ku Klux. All over that County, therefore, gen- 
tlemen. Radicalism Avas subdued, except in this belt of country, extend- 
ing from Yorkville to Jim Williams' residence. 

And hoAv, gentlemen of the jury, shall Radicalism be sul^dued there? 
The Ku Klux Klan answered this question thus: "By disarming the 
negro militia; by taking out of their hands the only protection that the 
Government had given them." And, first, by threats, and then by per- 
suasion, and then, by renewed threats, they ordered and besought this 
Captain Williams to deliver up his arms and trust himself to the tender 
mercies of this organization, which had already murdered Roundtree and 
Goode and Leach, and had terrorized the entire community, except in 
that narrow belt Avhere lived Jim Williams and the members of his 
militia company. But the brave man refused ! I honor him for it. 
There is not a drop of blood in my veins that does not stir to-day ifi 
grateful response to this heroism of an uneducated negro — five years, 
only, a freeman — who now determined to protect the lives and liberties 
of liis fellow-citizens by the only means Avhich the Government had given 
him. Would to God tliat others had then been inspired Avith the deter- 
mination of this militia captain Avho refused, gallant man that ho was ! 
amidst the prevailing cowardice, to surrender either his principles or his 
arms! And Avhen the names of these conspirators, who murdered him, 
shall have rotted from the memory of men, some generation Avillseek for 
marble white enough to bear the name of that brave negro captain. 

Radicalism broken, subdued ! Only the narrow bridge left of Jim 
Williams' militia arms! Andhe ivonH give ihemtip ! And Radicalism 
Vt'ill prevail and remain unsubdued there until those arms are seized and 



395 

tliat brave negro killed ! And who goes there to do it ? Is it the citi- 
zens generally who seek protection from the danger with which he threat- 
ens them? Did some of ray friends, who sit here, citizens of York 
County, join in this expedition? Did they go? No ; the Ku Klux 
Klan goes ! It is not the spontaneous uprising of the people who have 
heard Jim Williams' terrible threats, but it is the stealthy midnight 
march of the disciplined, disguised and sworn Ku Klux Klan. If it 
was merely to seize the militia arras, to disarm negro outlaws, was not 
that a mission in which every citizen might, in such an emergency, have 
joined ? Yet, gentlemen, not a man went upon that raid to seize those 
arms and hang Jim Williams except the sworn members of this political, 
disguised and sworn Ku Klux Klan. Gentlemen of the jury, you know 
what they went for. You know why those arms were a terror. You 
know why Jim AVilliaras was the object of that raid. It was because 
the mission of the Ka Klux Klan had not yet been accomplished, and 
Radicalism could still flourish and be protected under the gleam of Jim 
Williams' bayonets. 

But, gentlemen of the jury, Jim Williams had made threats! He 
was a dangerous man ! This is what our friends say for the defense. 
About the question of Jim Williams' character, gentlemen of the jury, 
I have little to say. We have had straggling evidence, weak, halting, 
wholly unsatisftictory, that he was a dangerous man ; but, up to the time 
of his death, not a single act, not the smallest scrap of testimonj'-, gen- 
tlemen of the jury, of any uncivil or disorderly act has been placed 
before you here, either on the part of Jim Williams himself, or on the 
part of any member of that militia company. Now, if Jim Williams 
was a dangerous man, and had excited a panic among the white people 
of that community, could they not have shown us, by some of his acts 
by what he himself had done, or allowed his militia company to do, tha 
he had demonstrated himself to be the dangerous man that that commu- 
nity reported him to be? Would not our most able and ingenious friends 
who conduct this defense have put such testimony before you if it had 
been possible to have produced such testimony ? And yet, up to the 
hour of his death, I repeat, nu disorder, no misconduct on the part of 
the captain or his company has been brought to your notice. On the 
contrary, gentlemen, at the very time when these Ku Klux raids were 
going on all over that County, a meeting of the white and colored citi- 
zens of that very neighborhood was held. Andy Tims, a member of 
Jim Williams' militia company, the clerk of the company, calls a meet- 
ing, at the suggestion of the white people, to know whether these militia 
arms are the cause of the Ku Kluxism, and of all the terror that pervaded 
the country; and this meeting of white and colored citizens expressly 
agreed with him that it was not the militia arms. 



396 

But, Ji:n Williams' threats! Williams' threats "to kill from the 
cradle up !" Well, gentlemen of the jury, that is a matter for you. If 
you believe that Jim Williams made those threats, and that the makiuo; 
of those threats was the reason, the motive, which induced the Ku Klux 
to plan and to execute that raid which resulted in his hanging, then you 
have given to this defense some little color for the position which they 
take, that the intent of the raid was not to injure him on account of his 
political principle or action. 

Genlleinen of the jury, do you believe he ever made those threats'? 
Do you believe that, except, possibly, in view of the raiding of the Klan 
through the country, and the fact that his own company, himself and 
his neighbors, were hunted like wild beasts from their homes, do you be- 
lieve that, except in connection with such events, he ever uttered any 
threats against the white people of that County ? I can believe, gen- 
tlemen of the jury — and 1 do not blame him for it — I can believe 
that he said, and that he meant, that, if they did not stop murdering 
his people, retaliation would commence. But, gentlemen of the jury, 
who are these witnesses who tell you of these threats ? They are ex- 
clusively the ivhUe people of York County and three Democratic ne- 
groei^ ! Ko negro, who was not a member of the Democratic party — 
who was not anti-Radical — ever heard Jim Williams make these threats, 
or ever heard of such threats till after he was killed. There is the 
evidence, gentlemen, and I leave it with you. I do not believe — and I 
think you do not believe — that those threats were made, except, pos- 
sibly, and with the qualification which I have taken, in view of the 
murders and the outrages done upon the colored people of York County ; 
and if they were so made, they were justifiable. But, whatever he had done, 
whatever his language and whatever his position ia that community, 
these conspirators, who went to murder him, told Gadsden Steele, on the 
way there, that their purpose Avas to " kill those who voted the Radical 
ticket," and on their return they told Iliram Littlcjohn the same; and, 
as I have already shown you, the fact that the Ku Kkix Klan was alone 
selected to do this work, points with irresistible certainty to the objects 
Vvhieh tliey had in view in the taking off of Jim Williams. They had 
joined in the gene-al crusade against Radicalism, and everywhere else 
the militia arms had been given u]), and tlie negroes had been subdued. 
But Jim Williams still slept in his house, and his company still had their 
muskets, and he had told them tliat if these raids did not cease — perhaps 
he told ihem, I had almost said I hoped he did-^that if these raidiugs 
did not cisase, somebody besides negro Radicals should sufler. The Ku 
Klux Klan liad sworn to put down the Radical party. Armed and dis- 
guised, this organization went there on that night to' capture and destroy 



397 

this la=5t stronghold of Radicalism in York County. That, gentlamen of 
the jury, was the head and front of Jim Williams' offending. 

Panic among the white people! And what did they do ? Were they 
so panic-stricken that they slept out of their houses? Negroes were 
scattered in the woods for three mouths, and yet there was such a terrible 
panic among the white people ! There had been burning of gin houses, 
yet, in not a single instance can this be shown to have taken place till 
the Ku KIux raids had become frequent and general. If they raided 
upon Jim Williams because of the burnings and the panic, what was the 
object of their raids in December and January immediately following the 
election? You know that these fires, whatever they were, if they had 
any cause, must have been the result of the provocation, and the intense 
incitement which the negroes had received in the death of Tom Kound- 
tree, and Aleck Leach and Charley Goode, and the whipj^ing of hun- 
dreds, and the maiming of hundreds of the negroes in that County. 
Whipping the negroes, and killing them throughout the County, and, 
then, because fires take place, justify the killing of Jim Williams because 
of those fires! Gentlemen of the jury, this was all one grand, continu- 
ous and complete crusade against the negroes — Radicals. According to 
the testimony of all the witnesses whom we have put upon the stand, its 
■ one object had been to accomplish the result declared in the constitution 
of the order, of opposing Radicalism, and of terrorizing that negro pop- 
ulation till they should be afraid to exercise their right to vote. Now, 
the attempt is made in this defense to substitute for this purpose of the 
Klau, and the killing and whippiiTg of the colored people, or, as charged 
in the indictment, of injuring and oppressing Jim Williams because of his 
exercise of his right to vote, and of killing him for that cause, the com- 
paratively innocent purpose of simply disarming a negro outlaw, who had 
threatened — but never till after his death! — to kill "from the cradle 
up !" 

Gentlemen of the jury, this is our testimony, and our proof in support 
of this indictment. Robert Hayes Mitchell, this defendant, was a mem- 
ber of the party who entered the house of Jim Williams, and hung him 
on the night of the 6th of March, 1871. By evidence, which is not con- 
tradicted, he was there throughout that whole raid. The object of that 
conspiracy, of which he was a member, was the terrorizing by w'hippiugs 
and killings, of the negro Radicals of York County. lie joined that 
conspiracy. On the night of the 6th of March he went in the execution 
of its purpose to injure and oppress, and did, in fact, kill Jim Williams, 
in pursuance of the purposes of the Ku Klux Klan, of which he was a 
member. He stands arraigned before you to-day for those crimes, and 
we ask your verdict, upon this evidence, of "Guilty." 

For Robert Hayes Mitchell, the prisoner at the bar, who can have on 



398 

this occasion any feeling but pity? No man is so poor that he has not 
friends whose happiness is linked with his fate, and whose hearts will be 
wrung with anguish for his punishment and suffering. But to-day 
unfortunately, this defendant is the representative of an organization 
which is responsible before you and the country for a succession of crimes, 
monstrous and appalling, for a j)urpose, broad and general, of putting 
down and destroying a political party by killing and whipping its negro 
members. I wish, gentlemen, we could ask for mercy upon Robert Hayes 
Mitchell. Bat if you could have at this moment the eyes of Fancy, nay, 
the eyes of Truth, behind Robert Hayes Mitchell, you would see the 
anxious eyes of a mighty Klan, an organization which embraces tens of 
thousands of members, stretching all over one entire section of this 
country. It is they, gentlemen, as well as Robert Hayes Mitchell, who 
are on trial to-day, and he is but the poor and unfortunate representative 
of this more guilty and horrible conspiracy. Beyond you, gentlemen, 
there is a power which can graduate punishment according to the guilt 
of the individual ; but your duty to-day is merely to say whether Robert 
Hayes Mitchell did conspire with his fellow Ku Klux to deprive colored 
citizens of York County of their right to vote at future elections, and 
whether he went on the "Jim Williams raid " with the purpose of injur- 
ing and oppressing, and, finally, killing him in the execution of the pur-- 
pose of the Klan, and because he had voted, at a previous election, the 
Radical ticket. 

Gentlemen of the jury, no eloquence, no ingenuity, no art or power of 
forensic advocacy, such as will delight and impress you in the arguments 
of the distinguished counsel who will follow me, will ever efface from 
your minds the ghastly horrors of that night which witnessed those 
crimes. The bright moon looked down upon a scene never before paral- 
leled in our land. The education, the intelligence, the property of York 
County, represented by the Ku Klux Klan, had then assembled to 
excute the purpose of the order, on the person of Jim "Williams. Rob- 
ert Hayes Mitchell is there. Williams is hung ; hung by the Ku 
Klux Klan; hung because he is a Radical; bung in pursuance of the 
conspiracy whose monstrous nature was written in its constitution, which 
now receives its conclusive interpretation in the blood of its victim. 

What American citizen can think of that scene without a shudder and 
a blush ! V/hy did not the very elements^-why did not Nature herself 
cry those Avretches, "Halt ?" Wiiy did not the stones beneath their feet, 
and the piney boughs that sighed above their heads, bid them, " Stop ?" 
I should have thought they would h^ve heard such words as greeted the 
ears of the terrified Alonzo, when all nature seemed breaking into voice 
to herald his crime ; 



399 

" Methought the billows spoke aud told me of it ; 
The winds did sing it to me ; aud the thunder^ — 
That ,deep and dreadful organ-pipe — pronounced 
The name of Prosper ; it did bass my ire-'^/ja^s." 

No, gentlemen of the jury, the voice of nature, of couscience, of God, 
fell on deaf ears. The conspiracy passed on ; the deed was done ; the 
dreadful secret was hidden by the oath of death. Months pass by. 
Williams moulders in his grave. Robert Htiyes Mitchell Avalks forth 
still safe and unpunished. But Justice — Justice, whom the ancients pic- 
tured with the feet of velvet and hands of iron — is on his track, and 
now, at this moment, holds him in her unrelaxing grasp, and commits 
him to your just judgment. 

Such a responsibility, gentlemen, is great ; but it is yours, and you 
cannot escape it. It is for you now to strike the blow which shall not 
only reach this prisoner, but, through him, shall reach that greater crim- 
inal, that conspiracy, which, in its inception and progress and in all its 
operations, has been aimed at the destruction of your dearest rights, the 
striking away of the protection of an entire class of our fellow citizens. 
Arouse yourselves to the full height of your duty. Strike the blow 
which shall bring justice to Robert Hayes Mitchell, and paralyze that 
vast and j-emorseless conspiracy which stands behind him. Let your ver- 
dict be the invincible arm of the Government, striking down the op- 
pressor and lifting up his victim. 

ARGUMENT OF THE HON. HENRY STANBERY. 

Mo,y it j)lease your Honors, and you, Gentlemen of the Jury : 

It is gratifying, gentlemen, not only to my learned friend who has just 
taken his seat, but to all parties, to witness wdth what close and undi- 
vided attention you have listened to the argument which has just been 
delivered. You know, gentlemen, those of you, ^t least, who belong to 
the colored race, that grave doubts have been entertained whether, in 
consideration of your previous condition, you have arrived, at this time, 
at a state of improvement which would ju.-^tify your receiving the right to 
sit in judgment upon your fellow men, where you now sit inthatjurv 
box. So far, gentlemen, you have shown a disposition to give undivided 
attention to the case. You have at least shown one qualification for a 
juryman — you have listened, but as yet, to one side^ — perha2:)s to that 
side to whic'^ your sympathies are most drawn. Now, gentlemen, can 
you hear the other side? Can you. give the same undivided attention 
to the advocate for the defendant, as you have given to the advocate 
who has stood up for the Government? If you can do that, gentle- 
men, you have gone one step further, and a great step further, to 



400 

wards vindicating your right to sit in" the jury box. But, individual 
attention is not all that is required of a juryman. The juryman does 
not hold up his hand before God and swear that he will listen to the 
argument and the evidence with undivided attention. That is not all ; 
he swears that, after he has heard the testimony and listened to the 
argument, and the case is committed to his hands, he will truly, justly, 
and impartially decide between the State and the prisoners. 

Now, gentlemen, if you reach that future point and show that you 
are capable of divesting yourselves of the prejudices of race and coh)r ; 
show that you can act with impartiality, whether the man on trial is 
black or white. Radical or Democrat; if you can go that other step 
forward, then, gentlemen jurors, I am ready to say, that you, at least, 
are entitled to sit in the jury box. If, therefore, you earn a title to 
exercise that supreme right over the lives, liberty and property of your 
fellow men, black and white, you have earned the highest title to en- 
joy all political privileges. Show yourselves fit for that, and you will 
show yourselves fit for everything. 

Endeavor then, gentlemen, to make it evident that you are entitled 
to this right, to sit in that box, by the exercise of impartialit)', by 
weighing the evidence without bias, without prejudice, and founding 
your decision upon the weight of that testimony, wherever it leads you, 
whether to conviction or acquittal. Why, gentlemen of the jury, the 
ancients — who were wise men, for there were wise men before our day — 
the ancients, whenever they represented the form of Justice, represented 
her with a fillet round her eyes ; and why did they blind-fold her ? that 
v.-hen she came to decide between man and man, she might not see the 
parties, that she might not see a friend on one side, or an enemy on 
the other ; but, giving her decision on which side soever that might 
happen to be. That is precisely the position in which a juryman should 
stand. He should shut his eyes, having neither favors nor friendship, 
or any prejudice, either of race or political partisanship ; he must do 
all that, or he is not fit for the jury box; and, if he sits there and 
does not do that, although he may not be made to answer here, there 
is another bar where he shall be called to an account for his violated 
oath. 

Gentlemen, when my associate and myself came here from our distant 
home, to take a part in these cases, we did not come with any expecta- 
tion of arguing any case upon the facts. We expected to argue the legal 
questions which, day after day, for a period of two weeks, you have heard 
us discuss at this bar ; that was our business here, leaving it to the 
local counsel, engaged in the case, to argue these cases upon matters 
of fact when thoy came to be heard before the jury. But, as we sat here> 
these local counsel, our bothers of the bar, requested us to go further? 



401 

and, at least, to give our attentiou to the case that was coming on, in 
the development of the facts, and to assist in the argument of any legal 
question that might come up.- AVith that understanding, my colleague 
and myself took our seats, and, in addition to arguing the questions of 
fact that arose in the trial of the case, insensibly, we have been drawn 
into the whole case. For, after having listened to all the testimony 
given for and against the defendant ; having weighed, considered and 
examined the charges upon which our client was brought here, my 
learned colleague and myself came deliberately to the opinion that a 
case was not made out that warranted you in finding tliat Robert Hayes 
Mitchell was guilty under either count of this indictment. Now, gen- 
tlemen, you must not take my word for it, of course, but I say that ew 
would not have appeared in this case, upon the facts, were it not that, 
in our deliberate judgment, this defendant has been brought here, 
charged v/ith one offense, and an attempt made to convict him of an- 
other. 

I shall now proceed to show, gentlemen, what Robert Hayes 
Mitchell is charged with in the indictment, and what is proved against 
him. This may lead me into matters of law ; I may follow my brother 
Chamberlain, the Attorney General, in stating to you some matters of 
law, which you will afterwards receive under the instruction of tlie 
Court, but which I must state in order to make my argument under- 
stood by you. First, then,, what is this man charged with ? You 
have heard a great deal of violations of order, and outrages, and espe- 
cially in refei'ence to what is called this raid upon Jim Williams, ter- 
minating in his assassination; but you must first ask yourselves, are you 
here to try the murderers of Williams? are you sitting in judgment on a 
murder case? is there any one here to be arraigned for that murder? 
Not at all ; the question is not before you whether he was murdered, and 
who were his murderers, that you may mete out justice to them ; 
you have nothing to do with that ; there is no such thing charged against 
this defendant. 

There are three counts in this indictment; three distinct charges; three 
distinct oftenses. What are they ? The first is that Robert Hayes 
]\Iitchell combined with others with intent to violate the first Section of 
this Act, by unlawfully hindering and restraining divers male citizens of 
African descent, etc., from exercising the right and privilege to vote at 
the October election, in 1872. That is the first charge, that the conspi- 
racy he entered into was in reference to a particular election, designated 
as an election to come oflT on the third Tuesday in October, 1872. That 
is exactly the scope and description they have given in the first count. 
It was to intimidate divers citizens of African descent from voting at that 
election, to come oS" in 1872. 
26 



402 

Where is there a particle of evidence that he has entered into such a 
conspiracy as- that? Put your hands upon your hearts, and answer that 
question. Has a single witness testified to you that this young man has 
entered into such a conspiracy as that ? If you should find him guilty 
of that count, you mu.^t find that he entered into that particular conspi- 
racy — not the general conspiracy (I will come to that by and by) — to 
prevent their voting at a special election. It is not a conspiracy against 
general elections ; it is a conspiracy against a special election, named 
and described in the count, that you are called upon to answer to under 
that first count. 

What is the second count? It still remains in the indictment. But I 
must caution you against supposing that you are to try this defendant 
for v.'hat is alleged in that count, and I am glad that you are not to try 
him on that second count. What is it? They chai:ge that Eobert 
Hayes Mitchell, with a number of others, did conspire, with intent to 
iuj ro, oppress, threaten and intimidate Jim Y/illiams ? With what intent ? 
To prevent and hinder his free exercise and enjoyment of a right and 
privilege granted and secured to him by the Constitution of the United 
States, to wit, the keeping and bearing of arms. That is the particular 
conspiracy stated there, gentlemen ; that was precisely what my client 
was after. On that famous night of the 6th of March, as I will show 
you, he was on his way to Williams' house to get his arms out of his 
house, and to secure them from any further use by him. Right or 
wrong, that was his purpose; that was what he was after; and, there- 
fore, that was an unlavvful thing, as the law does not ahthorize him 
to break into another man's house to get his arms. If the)'^ had adhered 
to this count, this defendant, notwithstanding all that could have been 
said l)y my learned colleague and myself, would have beenjconvicted ; you 
would have had plain proof before you that the purpose of that party, 
and this young man, as a member of it, on that night of the 6th of 
March, was to go to Jim Williams' house and to get his arms ; but, gen- 
tlemen, that count is no longer in this indictment. It is dismissed; it is 
no longer under your consideration. 

What is in this third count? It alleges that this defendant conspired, 
with others, to threaten, intimidate and oppress Jim Kainey, &c., for 
voting at an election on the third Wednesday of October, 1870. There 
is a vary specific charge that this young man conspired with others to 
injure Williams, because he had voted at the election held in the fall of 
1870. Gentlemen, where is the proof, I would like to know, that he en- 
tered into a specific conspiracy of that kind to injure Williams, on ac- 
count of his having voted ? Recollect, that is what is charged in this 
count; that he conspired to injure Raine}'', by breaking into his house 
and taking his arms. But he conspired to injure him simjjly on account 



403 

of his vote, given at that election, a,nd that alone. Now, tell me, gen- 
tlemen of the jury, where you find a single witness who testified that this 
young man entered into any such conspiracy as tliat ? Now, what have 
you got on the subject of conspiracy? There were conspiracies enough, 
according to the witnesses ; but what are they ? Conspiracies growing 
out of this written agreement which makes the constitution of the 
Ku Klux ; that is the conspiracy of my learned friend, the Attorn-ey 
General. Let us admit that it is, for the sake of argument, a conspi- 
racy to put down the Radical party, i^.re we charged here with a con- 
spiracy to put down the Radical party ? There is no such thing here. 
We are charged with a couspii'acy aimed at Jim Williams alone The 
conspiracy which they prove out of these papers is a general conspiracy 
against the whole Radical party. What next? They say that the acts 
of the j^arties engaged in the Ku Klux organization show that they in- 
tended to put down this Radical party by murdering all the wdiite Radi- 
cals and by whipping all the black Radicals, by controlling all the elec- 
tions to be held, and prevent white and black Radicals, indiscriminately, 
from exercising the right of voting. A general conspiracy against the 
whole party ; a general conspiracy to control all elections ; this is the 
nature of the conspiracy they prove. Now, you' may think, because 
they prove a conspiracy a great deal woree, infinitely more general and 
pernicious than this that is charged, therefore you can find him guilty 
of the particular thing; but, gentlemen, such is not the law ; and I will 
now proceed to address the Court, an that part of the case, to show you 
what is the law of the case, by whidh you must be guided. 

May it please your Honors, I was urging that, in this indictment, the 
charges are of a particular conspiracy, and that the defendant could 
only be convicted by proving this particular conspiracy ; and I stated 
that the proof, as claimed by the Attorney General, was only as to a gen- 
eral conspiracy ; a general conspiracy to control all elections ; a general 
conspiracy to put down the Radical part)^ ; to kill, as one said, all the 
Radical white voters, and to whip all the Radical negro voters. Now, 
give the proof as large a scope as possible, and it is proof only of a gen- 
eral conspiracy. They have charged a particular conspiracy in the first 
count, and a particular conspiracy in the second. The conspiracy charged 
in the first count did not aim at all elections, but against certain indi- 
viduals, of African descent, being above twenty-one years of age, to pre- 
vent them from voting at a single election, viz : that of October, 1872 ; 
the conspiracy is confined to that election alone. 

The second count specifically charges a conspiracy against a single in- 
dividual, Rainey, on account of his voting at the election, held on the 3d 
Wednesday of October, 1870, I said to the jury, I had heard no testi- 



404 

mony as to this specific conspiracy. And now, may it please the Court, 
are these special conspiracies made out by proof of a general conspiracy ? 

I first refer your Honors to Greenleaf on Evidence, page 101. [The 
counsel here read the authority.] Now, here the particular intent and 
particular conspiracy is to oppress and injure Rainey. They give no evi- 
dence of that particular conspiracy, but of a conspiracy in a general way, 
against all Radical voters. I also refer your Honors to Volume 3 of 
Wharton's Criminal Law, page 349. [Mr. Stanbery here read the pas- 
sa^re referred to.] We see from this authority that where a special con- 
spiracy is charged, it cannot be proved by showing a general conspiracy ; 
and that the converse is also true, that a general conspiracy cannot be 
made out by proof of a special one. Therefore, proof of a conspiracy to 
put down Radicalism, and defraud Radical voters out of their votes, and 
to oppress them, will uot sustain a charge limiting the intent to one voter 
by name. I now refer your Honors to a reported case, in Seventh Met- 
calf's Mass. Reports, page 509. [The counsel here read the authority re- 
ferred to.] 

It was not necessary to enter into particulars. In the first count, it was 
not necessary to say that the conspiracy had for its object a single election 
of 1872. But they have described that conspiracy as limited to one 
election, and, this being a descriptive allegation, it must be proved. You 
call this man to defend against a particular conspiracy to prevent people 
from voting at a special election, naming the election. At that time, the 
fact was the conspiracy that he entered into, and they expect to make 
out that he had not entered into such a general conspiracy, but had 
entered into a general couspii'acy against voting at all elections. That 
will not do, as will be seen from what I have read, and I think my friend, 
the Attorney General, would uot object to that. I have said that, in the 
judgment of my learned colleague and myself, the indictment fails for 
want of proof. Now, gentlemen of the jury, I hope you see the points I 
make. I do not stand here to defend this prisoner against all conspiracy ; 
I concern myself only about this case. I don't stand here to defend him 
from implication in the murder of Rainey, for he is not on trial for that 
murder. I don't stand here to defend him against a general conspiracy, 
for he is not so charged. But they have chosen to charge him with en- 
tering into a special conspiracy against parties intending to vote at a spe- 
cial election — a conspiracy that did not embrace any" other election but 
that s])ecial one in 1872 — and I ask you, upon your oath, is there a par- 
ticle of proof that he entered into such a conspiracy as that? Plave you 
heard a witness say one word about his having entered into a conspiracy 
to interfere with voters at the election in 1872? 

As to the third count, where is there a particle of evidence that he 



405 

conspired to injure and oppress Jim Rainey for having voted at the elec- 
tion of 1870 ? The gentlemen say we find it in that raid of March, 
1871, in which he was engaged. They say the parties went into that 
raid to punish Rainey for having voted the Republican ticket at the 
election of 1870; that is what they say was the purpose of that raid ; 
that was the purpose in the mind and heart of that young man when he 
joined the party that night. Now let us carefully examine the evidence 
as to the motive and cause of that raid, and whether it was a matter 
relating to voting at all. 

Now, gentlemen of the jury, go back to what had happened before that 
night of the Gth of March. As early as the month of August, in the 
year 1870,, the Governor of the State, according to the evidence, had 
placed in the hands of certain of the colored people of York County 
arms of the latest improvement, breech-loading rifles, called, I believe, 
Winchester rifles, the most improved and deadly weapon of that sort yet 
invented for rapid firing at long range. It was this sort of weapon that 
the Governor had placed in the hands of these people, organized as 
militia companies. Why is it necessary that a weapon such as this 
should be given to this organization ? And how did it happen that not 
a single gun is giv^en to the white people ? An election was coming on 
to be held in October; there was great excitement in that part of the 
country — not about the Ku Klux, for there were no raids at that time — 
but about the election. There had been an organization of Ku Klux in 
1868, but it had died out — so far as Ku Kluxing was concerned — before 
August, 1870. When these arras were placed in the hands of these 
people, there were no threats from that quarter. Did the Governor give 
any arms to the whites ? Did he place any Winchester rifles in their 
hands? When he armed the black company of one hundred men, did 
he give arms to a white company of one hundred men ? When he armed 
the blacks to defend themselves, did he arm the white men to defend 
themselves? No; he armed the blacks and left the whites defenseless. 
What further, gentlemen ; not merely one company, but at least three 
companies of black men were armed in that County with the public 
arms, but not a single company of white men. A black face was a 
recommendation to him for a musket; a white face was no recommenda- 
tion. I think, gentlemen, you will go for equality ; I hope you of the 
colored race will not expect or desire to rule white men ; you don't want 
to be better off" than they are, do you? You don't want to stand above 
them, do you ? You don't want to have arms and let them have none? 
Let me tell you, if you go for anything like that your triumph will be 
short, and your doom inevitable. Why, gentlemen, he will put a stop to 
that. If, instead of living on an equality with your white brethren, you 
seek to rule them, you will commit a terrible mistake; take ray word for 



406 

it, gentlemen. I am not an alarmist; you can only maintain your posi- 
tion here by fairness and justice to your white fellow-citizens. 

Governor Scott put these arms into the hands of these companies — each 
having not less than one hundred men — for what purpose? It was for 
organization ; organization is an important thing ; say my friends, " or- 
ganization of the Ku Klux is a dangerous thing;" because, in organiza- 
tion, men act together, and bring together an amount of force which 
nothing but an equal organized force can resist. If an organization 
of Ku Klux is dangerous, an organization of colored militia may be 
made even more so. Armed, equipped and drilled, and made ready for 
war, as Jim Williams' company was — gentlemen, put yourselves in the 
position of these white people. You know there are as good white people 
in York County as anywhere else, and, perhaps, some bad ones too ; but 
gentlemen, there are women there who are not Ku Klux, innocent chil- 
dren who are not Ku Klux — there are people there who must be pro- 
tected. After these guns are put into the hands of Williams' compan}^ 
and the other two companies, what next ? They go to work with active 
drilling before the election ; drilling just as if another war was about to 
commence; not drilling with old muskets, with which men may learn the 
manual of arms, but drilling witii these dangerous weapons. But why 
are these improved rifles put into their hands ? It is expected there will 
be another use for them than simply going through the manual of arms. 

They were intended to be put in a condition to be made deadly instru- 
ments ; and they got bayonets, and shortly afterwards, by the agency of 
Jim Williams, the company had fixed ammunition, balls all capped, ready, 
at any moment, to do their deadly work. What, gentlemen, did he want 
with fixed ammunition ? Tell me that. Why, if he only wanted to go 
through the manual of arms, and, by way of amusement, to go out and 
muster and play soldiers, if that was all, what did he want with fixed 
ammunition? If he wanted to make a noise with his guns, a little pow- 
der would have answered ; but it was something more than noise that 
was required — it was execution. Therefore, he got that which the soldier 
gets when he stands in the front rank of battle. He got a bayonet and 
two rounds of ammunition for every one of his men. Against whom did 
he intend to use them, and under what circumstances ? It looks to me 
now, before we go any further, as if there was some secret motive about 
it. As if there was some person or persons against whom those guns were 
to be used. He didn't get that ammunition to shoot away merely for sport. 
What, gentlemen, did he get it for, and what was he drilling his men for ? 
Now, if you can't answer that question, I will put a witness on the stand 
that will answer it; and who is he? Jim Williams himself, he shall 
answer it. What did those rifles, and your drilling, and that organiza- 
tion mean ? He shall answer himself Nine witnesses that have been 



407 

examined — five of thera white men and four of them of your own color — 
nine of these witnesses have given his answer, and now what does Jim 
Williams say ? Let him speak, gentlemen, for himself. Let us begin with 
that witness, gentlemen, who, in point of time, was first in order. Let us 
begin with Mr. Fudge ; you recollect the witness, gentlemen ; any 
man that has seen that witness and listened to him would not very soon 
forget him. He struck me as a man of no ordinary mark, Mr, Fudge 
tells you that he lives within a mile and a half of Jim Williams ; that 
he had lived there for some time ; they might be called near neighbors ; 
and he was of the Democratic persuasion, while Williams \vas a Repub- 
lican. He says, just before the election last October, Williams came up 
to his house and called him out ; wanted to see him. He stood on one side 
of the gate and Williams on the other, and said that he would like that 
he would vote the same ticket with him. He was not coercing voters, 
but was ^^ersuading. Fudge replied that he should like to vote the same 
ticket with him, " I cannot vote jonr ticket," says Jim. " I cannot 
vote for certain persons," naming them ; " can't vote for them at all," de- 
nouncing them as damned scoundrels. " You have got to come vote for my 
men." Fudge replies, " you will allow me to exercise my own opinion, 
and to vote my own way ?" " Yes, but " says he " I tell you if, in this 
election, that is now coming ofi' my party is not successful" — gentlemen, 
pause upon the words, " my party is not successful — I will kill from the 
cradle to the grave, and I will lay this County waste." That was the de- 
claration he made at that time, 

Mr, Johnson, That was before the election of 1870. 

Mr. Stanbery. Certainly; I say before the election he says, "if my" 
party is beaten at this election, I will kill from the cradle to the grave, 
and I will lay this County waste." 

They asked this man on his cross-examination — " Were you frightened 
at that?" "No, sir; I was not." "Why not?" "Because t^iere was 
but one man — man to man," and he says, " I have never been frightened 
at any man ;" and I saw by his face and the calm, frank manner of the 
man, that he would want no help when he was attacked by only one in- 
dividual. But he said he had an anxiety about his family. We asked 
him, " was Williams serious, or was he joking ?" He says, " he was 
serious." Do you believe, now, that this conversation took place ? Do 
you believe Mr. Fudge is lying? What right have you, gentlemen, to 
disbelieve that man ? His testimony has not been assailed by any one ; 
his character has not been assailed by any one. Did the manner and 
conduct and appearance of the man- induce you to believe he was telling 
a lie ? No, gentlemen ; the irapressicm he made was, in every respect, 
favorable to the man — cool, collected and determined; not alarmed, not 



408 

at all — perfectly trauquil. Can you be justified in saying: "We cannot 
and will not believe him ; the man is perjuring himsel£ and attempting 
to deceive us with a false narrative ? 

But he does not stand alone. Let us see, now, how he is corroborated ; 
v.hether other men have heard the same declarations from Williams. The 
next in order, to whose testimony I will call your attention, is Lindsay. 
Fudge was a man of our color ; Lindsay was a man belonging to the 
other race — he was a colored man. What does he say ? Lindsay says 
that he lives on the road between Williams' house and Yorkville; that 
he vras going to pay his taxes, and fell in company with Jim Williams 
on the way — both on horseback — riding towards Yorkville ; and he 
found, from Williams, that he was going up to Yorkville to get ammu- 
nition for his company. When was this '^ The Friday before his death. 
Now, what took place? In the course of conversation with Lindsay 
he repeated this same threat, that he had made to Fudge the fall before, 
almost in the same words. His words, then, were that he would kill 
from the cradle to the grave. But, to Lindsay, on that road going for 
his ammunition, he said his purpose was to " kill from the cradle up." 
He next, just before his death, has a conversation with one of his own 
color, (Mr. McConnell — you remember him well — a large colored man, 
with a loud, distinct voice.) In February, on the Sunday before his death, 
Yv^'illiams was coming from Philadelphia Church and stopped at McCon- 
nell's house, and McConnell fell m conversation with him. He told Mc- 
Connell he was going out himself — going out Ka Kluxing ; he was going 
out on that business, and that they w^ould hear of a mighty work to be 
done by him, and that the burnings that they had had were nothing to 
those he would hear of. " Was he serious ?" " Yes, sir ; seemed to be 
in what he said." 

Again, Brattou, also one of his own race, says, some time in Janu- 
ary, at Bratton's place, where he lived, Williams told him that he in- 
tended to rule; that he would Xu Klux women and children. I don't 
know whether it was this witness, bui to several witnesses he said he was 
going to make war; that he had been with Sherman; that he had learned 
how to make war, and knew how to do it. Again, with Mr. Atkins — 
the white man at the mill — he said to him : " Mr. Atkins, this fuss between 
the black men and white men, there is one way to decide it ; let us go out 
into the old field and fight it out, and if we gain I will- take" — that is 
the word he used then — "from the cradle up." Then, to Thomasson, 
colored, " I intend to sweep from the cradle up." Then, to Long, at the 
])laclc>*uiith shop. You recollect that conversation, gentlemen. It was 
after he had been down to Columbia, this spring, and had returned. .He 
came back dissatisfied, and said, with an oath, that the Legislature was 
a set of drunken people, doing no good, idling and drinking, and that 



409 

Governor Scott was no better than they Avere ; indeed, he called him a 
damned rascal, and said Governor Scott had not kept his promises. 
Then what was he going to do ? " Kill from the cradle to the grave." 
It seemed to be a favorite expres^^ion with him. What to some other 
witnesses? Why, if the Kii Klnx came down on him, what w^ould he 
do? Kill the Ku Klux ? Was that the retaliation he said he Avould 
make? Kill the Ku Klux? No; but if the Ku Klux came to inter- 
fere with the black people, he would Ku Klux women and children. 
That was the Avay he intended to retaliate. I think I understood the At- 
torney General to say retaliation was admissible. I was sorry to hear 
such a statement and such a doctrine as that, in a community where the 
races are in a state of antagonism. Why, gentlemen, if Williams had 
said, " if the Ku Klux come down here, and injure me, I will go up 
there and retaliate upon them," even that would uot be justifiable. But 
that is not the thing Jim said he would do if those Ku Klux came down 
in that neighborhood against the black people. What then ? He and 
his company would Ku Klux white women and children — the unoffend- 
ing ones. That was the declaration, gentlemen. 

Now, gentlemen, here is Mr. Lowry, who didn't hear Williams make 
these threats, but he heard of them. He met Williams and asked him if 
he had made them : "He gave me an evasive answer. I asked him if 
he had tlireatened to kill from the cradle to the grave, fie did not an- 
swer, or answered evasively, but at last he says, ' I did make them.' " 

Mr. Corbin. I do not understand that he said that. 

Mr. Stanbery. To that gentleman, Mr. Lowry, he admitted ihe threats 
to kill. 

Mr. Corbin. No, sir. 

At this point the Court took a recess of five minutes. When business 
was resumed the counsel for the defense continued his argument. 

Mr. Stanbury. Gentlemen, when the Court adjourned I was stating 
what Mr. Lowry had said when he came back to the stand, and I stated 
that he then said that when he first charged Williams with having made 
these threats to kill, &c., Williams gave him an evasive answer, but on 
the second time that he made the charge against him, Williams admitted 
it was true. 

[The reading of the testimony was here called for, and the stenographer 
read it as it has already appeared.] 

Mr. Corbin. The distinguished counsel did not limit the statement the 
way he limits it there. He entirely misrepresented the testimony as we 
understand it. 

The Court. I think you had better let the counsel go on without inter- 
ruption. 



410 

Mr. Stanbery. I am not opposed to iuterruption, persoually. 

The Court. We are, sir. 

Mr. Stanbery. I am never opposed to interruption when it is done in a 
proper manner. 

Gentlemen, to resume, the question was whether this man, Jim Wil- 
liams, had made threats. Now mark it, gentlemen, it does not stand 
simply upon the testimony of the first witness ; it is not confined to that 
talk with that farmer, but seven or eight other witnesses testify to the 
same threats — five white and four black — and one of them swore that 
Williams himself admitted to him that the threats which he had been 
charged with making he had made, and then said to him : " I was in 
Sherman's army, and learned how to carry on war ;^ I am a captain now, 
and understand how to carry on war, and I have got the authority from 
Governor Scott to carry on war." Gentlemen, such a man as that living 
in that neighborhood ! Now, assume that he was a white man, opposed 
to you in politics, your enemy, armed, with a company of white men at 
his back, under his influence, threatening you with burning, threatening 
you that he would take your family, from the cradle up, lay waste your 
i^roperty ; would you feel quite easy, gentlemen? Would you consider 
that man a safe neighbor ? One of two things you .would do — move 
yourself from his neighborhood, or lay plans against .him and join a party 
to carry them out, even at the risk of your life. Why, if it were a single 
individual that was making these threats, and had no power to suj^port 
him, you might perhaps go to some Justice of the Peace and sue out some 
warrant, and have him bound over to keep the peace ; but when he is 
backed up by a formidable force, and is the captain of that force, what 
could you do with so many disciplined soldiers, each one subject to his 
orders and willing to obey him '/ 

Now, gentlemen, whether he intended to carry them out or not, is not 
the question. Did the people believe he intended to carry them out? Did 
it alarm the country ? What is the evidence ? What is the evidence of 
those who did not hear threats from Williams ? At midnight, the whole 
horizon lit up at times with incendiary fires. Ah, says the gentleman, 
but not until after the Ku Klux had begun their operations. These 
peaceable citizens in York County, where there has been no Ku Kluxiug, 
are to be held responsible for the Ku Kluxing up iu th(3 northeast part 
*of the County. Are the peo])k! about Yorkville, and down in that part 
of the County where Williams lives — a broad belt, extending through 
from Yorkville, fourteen miles broad and ten miles long, where there had 
been no Ku Kluxing — are those peaceable men, vrith their wives and 
children, to be held responsible for these Ku Klux ? Is it any excuse to 
him, because he is raided on by others, that he should go and kill white 



411 

men in that part of the County which is quiet; not that he should retal- 
iate upon those Ku Klux and their wives and children, but upon the 
wives and children of men who never had done him any injury, but were 
living in peace ? 

Now, consider what manner of man he was. Their own witnesses say 
he was a good boy. He had a very bad way of showing it. Do good 
boys make threats like these ? Is that evidence of being a good boy in 
that neighborhood? I don't know; this man may have been a very good 
boy until he got these muskets, but he was a very bad boy afterwards. 
His were the last hands into which such a dangerous arm as this should 
have been put. He was an infatuated man, and a dangerous man. I 
have not heard lately of one more dangerous. He was not a drinking 
man, or a thieving man. I guess he was all right upon these points, but 
I tell you, the man was wrong ; he was dangerous — dangerous, first, be- 
cause he was not a mere drunkard or idler — he was serious in what he 
was about. What idea had the man got in his mind ? That he had a 
mission to fulfill; that he was the champion of his race ; that he was the 
man that was to lead the black man, not out of bondage — of actual 
bondage — but out of the bondage in which he was in the exercise of his 
rights as a voter and a freeman. He was to vindicate his race ; he was 
to protect them from injury. How ? Why ? Under what circumstan- 
ces ? How was it to be done ? In his mind it was to be done by force. 
He, therefore, had himself appointed a captain of the militia company. 
Then he had them drilled again and again, at night; accustomed them 
to the use of arms. Then he provided ammunition for them. He was 
doing all this, and, at the same time, was saying, "I am authorized to 
make war, and I am ready to go into it ; come out, if you want a fight, 
here in this old field — race against race. I challenge you to battle ; 
and, if I conquer, you take care of your wives and children and your 
l^roperty." This was the sort of man he was. Gentlemen, there were 
other companies in that County of York ; there were two others, equally 
large and equally well armed. What is done ? The fright, the danger 
into which these people fell had been heard, it seems, somewhere here, 
at the head of the Government. Persons were sent there, authorized to 
receive these arms ; and the arms of the company at Yorkville and the 
other, both near these Ku Klux operations, were surrendered. Not one 
of them afterwards molested ! They lived there after their arms were 
given up, in peace and quietness. Who did not surrender his arms 
The man who was at the safest and farthest distance from the Ku Klux — 
Jim Williams. You listened to the testimony of that witness, gentle- 
men, who said he saw Williams coming up the road with two or three 
men of his own color. He says they were quarreling, and the men 
turned up a road that forked near his house, but Williams came on 



412 

to the house, and he said: "Jim, what is the difficulty?" "Why," 
he say.^, " they want to give up these arms, but I won't, and we quar- 
relled." 

Now, consider the condition of the people then. Imagine yourselves 
the white men, and of opposite politics, with a wife and children un- 
protected in yonr house, without any organization to protect you, and 
a man with a character and determination like Williams had threat- 
ened that if any outrage was committed upon him and his people, he 
would lay the whole country waste ; that you would see a mighty work 
done, and that the fires that you had had would be nothing to such as 
would take place, and that he would lay the country waste and kill 
from the cradle up. Gentlemen, if I had lived there, in the vicinity of 
Yorkville, on a plantation, with my wife and my children, and such a 
devil as that was in the country — a man that would make such threats, 
and with a hundred armed men under his influence, obeying his word 
of command — if there had been 'such a man in my neighborhood, I 
would have joined the first squad thsJt came along to go and disarm 
them. I would have taken the consequences ; I would rather take im- 
prisonment, if necessary, than for one single night allow such a demon 
as that to be in my neighborhood ; and that is what every one of you 
would do. Why, gentlemen, if you have the same consideration for 
your wife and children as I have — putting yourself aside entirely — could 
you sit quietly at your firesides, hear such threats, see these fires, feel 
that the whole atmosphere was full of panic and alarm — could you 
sit there quietly and do nothing ? Why, you would not deserve to 
have wives and children. No ; your first impulse would be to put down 
such a threatened danger as that ; to disarm such a wild beast as that; 
and to disarm all those that were ready to follow him. 

Y\"hy, gentlemen, I have no doubt that there were good and true col- 
ored men in that company that Jim couldn't get to go with him. I rather 
think those two or three colored men that quarrelled with him would not 
have gone with him at the word of command. But some of them would, 
there is no doubt. You know what an influence over the race of colored 
people such a man ^^ill have, exciting their passions — accustomed to obe- 
dience, as they are ; do not you know enough about your own race, gen- 
tlemen, to know that it wouldn't do to trust them, that it wouldn't do to 
allow them to follow such a leader ! Are you immaculate? Is there no 
danger, gentlemen? I put it to you, as intelligent men of that race, are 
there no circumstances under which you would be alarmed? Are there 
not those in your race that you would fear and dread ? That you would 
not leave in your house without your own protection ; that you would 
not dare to trust the life of your wife, or the sanctity of her person with ? 
Are there no such people in your race ? Are there not bad men among 



413 

you, and men who can be influenced by bad leaders. Now, have you 
heard of any one that has quite as bad a record as Jim "Williams, out of 
his own mouth and confession ? 

Ijet us see what this young man, the defendant, has done. He is a very 
voung man, scarcely past his majority. Look at him. Does he look like 
a murderer? Does he look like a dangerous man ? What kind of a 
man have they brought you among all these terrible Ku Klux ? Why, 
gentlemen, it is about the weakest case that they could produce before 
you. If they must have a Ku Klux, let them get a right sort of Ku 
Klux — a Ku Klux that has injured somebody ; get a Ku Klux that was 
about a bad business when he was engaged upon a raid. Let us 
try this man by that standard. Why is he a Ku Klux? He belonged 
to the society ; he was sworn in. What did he know about the Ku Klux 
at the time? Did he understand that it was a crime to go in that or- 
ganization ? Do you suppose Gunthorpe thought he was joining any- 
thing bad ? Had he any motive other than for protection ? Nobody 
could disclose the secrets of the order until he got in ; but he was told it 
was for protection ; and going into that society, gentlemen, could not 
make a man guilty, because he could not know, until after he had got in 
and became advised of the purjDoses of that organization, that there was 
any wrong in it.- If there was no wrong in Gunthorpe's going in, what 
vrrong was there in this defendant's going in? He knew nothing about 
these Klans, except that they were Ku Klux, and he supposed, as well 
as Gunthorpe, that they were organized in self-defense. What did he 
do? He went to one meeting of these Ku Klux, and to one alone, and it 
was for the simple purpose of electing officers. No pretense that any 
one told him that the purposes of the Ku Klux were anything other than 
the protection of the people, he went on this raid of the 6th of March. 
Now, gentlemen, was there no provocation for going upon that raid ? 
Was there no reason why there should be a raid that night, and why such 
an organization as the Ku Klux should go on it? They were going 
against armed men and an individual could not go alone ; it required an 
organization to go there and take away those arms. Well, what organi- 
zation in that County could do that thing except those Ku Klux ? They 
required more people to go with them ; they were making Ku Klux that 
night ; what for ? To go upon that raid. Now, gentlemen, I have said 
that the provocation for the people to go there was not absolutely legal, 
but it was such a duty as no man would shrink from who felt the fears 
felt ia that neighborhood from the danger of leaving those arms in the 
hands of those men. 

He appeared on that Pinckney Road, and, with him, four other young 
men, belonging to one family, called t)ie Shearers. These four boys were 
there, and, I think, one or two others. He said they had on no dis- 



414 

guises, and when the party arrived from the Briar Patch, they initiated 
those four Shearer boys. What did they know about Ku Kkixing ? 
They just took the oath, right there in the road. What was the pur- 
pose ? Everybody understood it to be the purpose of that meeting — the 
testimony is abundant from their own witnesses, as well as ours, that the 
object of that particular raid was — to do what ? What is the answer ? 
To disarm Jim Williams and his colored company ; to take aw'ay the 
arms. That was the purpose. Was it to take away his vote, or to pun- 
ish him for having voted ? Did those young men hear any such purpose 
as that ? Did the defendant join or conspire to go with any people there ? 
Not at all. No evidence of it whatever. Did he hear any one say in 
that crowd, on that night, that they were going to punish Jim Williams 
for having voted the Republican ticket at the last election ? Why, says 
my friend, the Attorney General, being in that crowd, although he may 
have gone there for the purpose of disarming Williams, yet he is respon- 
sible for anything that is said by any one in that crowd. Why, that is 
new law^ to me, Mr. Attorney General, and, besides, it is not good law\ 
With due respect to the Attorney General, the declaration of a party 
who is a co-couspiiator in the furtherance of the conspiracy, is evidence, 
but not a declaration foreign to the purpose of the conspiracy. I am as- 
suming that the object of this particular conspiracy, that night, was for the 
purpose of disarming this man, and not to interfere with his vote. I am 
taking it for granted that the proof is conclusive ; but you say that an- 
other purpose was mentioned by some one in that cavalcade, though not 
heard by the defendant. They stopped in a piney field before they 
reached, Jim Williams'. Who stopped there? This is one of the men 
who stopped. He didn't see Jim Williams that night ; he did not go to 
his cabin that night ; he came there, hitched his horse, and sat down 
quietly on the hill side. The detail of ten men went to Jim Williams'. 
What did this young man suppose they were going there for ? He sup- 
posed they were going to get Williams' arms. Gentlemen, there may 
have been men in that body — leading men there — who had a w^orse in- 
tent against Jim Williams than to get those arms. Gentlemen, I very 
much fear that there were some men there who secretly intended to take 
that man's life, and, perhaps, they had secret appliances with them. 
That may be ; but they took care, gentlemen, to keep that secret from this 
young man and his companions that night. Why, gentlemen, it is true 
that this young man was willing to go when it was announced that they 
were going to take Williams' arms ; and there was a strong excuse for his 
going. Suppose these men had said : " Now we are not going to take 
Williams' arms away ; we are going to take his life away ; here are the 
appliances; we are going to use th(>se ropes." Would this young man 
have gone with them? At least, gentlemen, can you find that he would 



415 

have gone, when he has had no opportunity to speak for himself? But 
this young man supposed he was going for what he considered a proper 
purpose, and what I would consider a proper purpose if I had lived in 
tha't neighborhood. How, in God's name, gentlemen, can you make him 
responsible for the horrid outrage that followed ? Why, geutlemeUj did 
not the men that were detailed to go down there and seize the man sup- 
pose they were- going for his arms? They were absent about an hour, 
or less than an hour, and when they returned they were silent ; the ques- 
tion was, "Have you got the arras?" No response whatever, but some 
showed guns; in a little while Dr, Bratton, in answer to a question put 
to him by some man where Williams was, said " He is now in hell." 
Gentlemen, I do not stand here to justify Dr. Bratton. 

Dr. BrattoJi was old enough, and ought to have known far better than 
that. When you get Dr. Bratton, with such proof, deal with him ; but, 
for God's sake, don't make this young man his scape-goat. I do not jus- 
tify that horrid outrage that was committed there that night. It makes 
my blood run cold to listen to the relation of it; after they had got his 
guns, to take him out from his family, and, without a moment's time to 
make his peace with God, to launch him. into the other world, and, upon 
their return, to speak of it in the impious manner- in which Dr. Bratton 
spoke of it ! I do not stand here, and cannot stand here, to justify that; 
it is a crime that should not go unpunished ; but, for God's sake, gentle- 
men, have the man who committed the crime before you, and then mete 
out the punishment. 

Gentlemen, the right man is not here; you have the proof, but not the 
offender. When he or they, v/hoever they may be, shall be arraigned, 
then will be the time to mete out the just punishment of such a crime ; 
but, gentlemen, I beg of you not to confound the just v^'ith the guilty. 
I pray you, do not allow your feelings to run away with your judg- 
ment; but deal fairly with this man, now before you ; measure out justice 
to hirn. If he is not found guilty of these offenses, gentlemen, acquit 
him, and you will do honor to yourselves and give a guaranty to the 
community that a black man knows how to acquit as well as white men, 
and hold in even poise the scales of justice. But, if you must always 
have a victim, if, when the right men do nofr appear, you can get any 
man with a white face and punish hira, vicariously, I do not want to see' 
one of your race on a jury again ; but I want to hear better things of 
you. 

Court adjourned until the 17th. 



416 

Columbia, December 17, 1871. 

ARGUMENT OF HON. REVERDY JOHNSON. 

Gentlemen of the Jury: 

More than a day having elapsed since you were addressed by the 
Attorney General, and by my colleague, it is possible, notwithstanding 
the close attention that you gave to each, that your minds at this time 
may not distinctly recollect the point which the case involves. I propose 
to set them before you, before considering the evidence which has been 
offered on either side, to support the charges in this indictment, or to dis- 
prove them. But there are some general considerations with which I 
hope you will indulge me, which seem to me to be not wholly, if at all, 
inappropriate to the occasion. Like my colleague, this is the first time 
that I have been called upon to address a jury composed in part of our 
colored brethren. But I beg you to be assured, and I know when I give 
you that assurance, that you and the Court will believe me to be sincere, 
that on that account 1 entertain and apprehend no prejudice which can 
in any way affect your verdict. I have uo prejudice, I knoAV, and I be- 
lieve that your good sense, and your native intelligence and desire to be 
right, will not permit you to indulge in any prejudice against the race to 
which I belong. We are all children of the same Father. In the dis- 
pensation of His power, and for the purpose of effecting some object of 
His own. He has given to some of us one complexion, and to others a 
different one; but from the first, when I was able to think upon such a 
matter, down to the present time, I never doubted that He endowed us 
all with the same faculties, gave us the same feelings, implanted in our 
bosoms tlie same instincts, and, above all, intended that we should be alike 
the servants of our Great Creator. Nor do I apprehend any danger to 
the prisoner at the bar flora the fact, if it be a fact, that some of you 
have not been educated. If it is so, it was owing to no fault of your 
own ; if it is so, it was your misfortune, and, as I believe, the misfortune 
of the country. In my view — and in that I follow out the precepts of 
our fathers, and, I think, the teachings of our religion — you are entitled 
by nature, and by nature's God, to all the rights which the white man 
claims himself to be entitled to. One of the objects, of our common 
creation was hap{)iuess; but this world is more or less, under every cir- 
cumstance, a world of trouble, and in order that we should all be happy, 
it was necessary that we should have some rights, Avithout which, the pos- 
session of happiness could not be obtained. Ignorance, gross ignorance, 
may comfort itself with the assurance that it enjoys something of happi- 
ness whilst it may remain in a state of slavery. The mere comforts of 
the physical man may be his; the love of his family and of his children 



417 

may fill his bosom as it does the bosom of the more intelligent and en- 
lightened; but in a true and comprehensive sense, happiness is not his 
lot. Nothing is more true than what has been said, that "the hour 
Avhich makes man a slave takes half his worth away." The author 
might have gone further and have said that it not only takes half, but 
all his worth away as a man ; and the moment he becomes a slave, hap- 
piness, in the true and general acceptation of the term, in the sense in 
which the term was used, is not to be achieved. And our fathers, there- 
fore, said in that declaration which was born never to die, that man, by 
nature, is endowed with certain inalienable rights, amongst which are 
the rights of life and liberty. They placed the latter upon the same 
ground as the former; they seemed to have believed, and they believed 
correctly, that, without liberty, life itself is not worth the having. In the 
words of Cowper: 

" 'Tis liberty alone that gives the flower 
Of fleeting life its lustre and perfume; 
And we are weeds without it." 

Gentlemen of the jury, white and colored, what I have thus said, I 
have spoken from my heart, and have spoken it from my head. Slavery, 
in my view, has been the vice of the age. I thank God that it was not 
inflicted upon us by our own conduct ; it was fastened upon us by that 
mother country from whom we withdrew on the 4th of July, 1776, but 
it has continued until of late — continued, more or less,' from necessity. 
How it was to be extinguished, what would be the consequences of its 
abolition upon the material wealth and safety of the people, were prob- 
lems about which honest difterence of opinion prevailed. Our fathers so 
thought when they drafted the Constitution of the United States, by 
which they provided, as you will remember, that the importation of 
slaves — not in so many words, but in terms which necessarily include 
them — should not be prohibited until 1808, a period of twenty years. 
But, fortunately for the land, the march of civilization, the progress of 
humanity, the teachings of the Gospel, in England, as well as here, had 
led almost the universal world to believe that such an institution is not 
only wrong and inhumane, but, by the dispensation of God in relation 
to all wrongs and actions of humanity, furnishes its own remedy and 
cure. 

The war, as you know, occurred in 1861. South Carolina fired the 
first gun in that conflict, which resulted in the death of hundreds and 
thousands of men, on either side, in our entire country. When I say 
that she fired the first gun, you must not understand me as imputing that 
she did what she thought she had no right to do. She believed — the 
27 



418 

large mass, at least, of her statesmen and people believed — that, by the 
Constitution of the United States, there was not only no prohibition npon 
any State to remove from the Union, but, almost from the very nature 
of the Government, a direct confession of the right. 

Many of the best men throughout the land, without reference to a po- 
litical party, entertained the same opinion. She did, then, in the com- 
mencement of that conflict, what she believed she had a right to do. I 
think she was wrong, and, as it turned out for her interest, fatally wrong, 
at least for a time. But, from the first to the present hour, I have never 
doubted that, however true it might have been that though there were 
some few who were animated by ambitious aspirations, the large mass of 
the intelligence of the South came to the same conclusion, and armed 
.for the conflict honestly. But the war ended, as you know, and ended 
so as forever to put an end to what, I think, was an erroneous construc- 
tion of the Constitution. The war ended, and these gallant men, who 
had almost surpassed the valor of their forefathers, as exhibited during 
the Revolution, are satisfied with the judgment of the God of Battles. 
They submitted to the result. They are now citizens, with yourselves, 
of the common country, bound up with its destinies, and as willing and 
as anxious to maintain its honor unharmed, and to promote its prosperity, 
as any class of men to be found iu any part of our extensive domain. 

You, gentlemen of the jury, who were once slaves, as I suppose some 
of you were, need not apprehend any return to that condition. There 
has not only been no manifestation of a desire to reduce you or your race 
again to slavery, but, my word for it, from my knowledge of the white 
men of the South, the attempt would be resisted at all hazards. And 
not only would you find resistance of such power and magnitude as to 
defy all such eftorts, but the opinion of mankind would reprove such an 
efibrt in terms from which those who should be mad enough to make the 
eflfbrt would shrink back with shame and horror. Slavery, then, is gone, 
and I thank God for it. I speak it now in South Carolina, and in the 
presence of those who, perhaps, at one time, thought it a divine institu- 
tion. Slavery is now at an end, and, while I thank God for it, I trust, 
in the mercy of Heaven, that it will never be permitted to settle any- 
where in any part of the civilized world. 

But, gentlemen of the jury, there is one other topic, in relation to 
which I beg leave to make a few remarks. ^Ir. Attorney General, in 
his speech, in opening this case for the prosecution, asked, over and over 
again : " Where are the gentlemen who are parties to this conspiracy ?" 

He said that echo answered, where? " Why is it that counsel from a 
distance have been brought to defend this conspiracy ? Why," says the 
Attorney General, " are they here in their professional capacity ; they 
are not knights errant." Well, as far as I am concerned, I am too old 



419 

to be a knight errant ; but my friend, the Attorney General, will permit 
me to ask, in relation to such — although it was not intended to be an in- 
sinuation — an insinuation, what brings him here? As the Attorney 
General of the State, it is not part of his duty to conduct this prosecu- 
tion ; the sphere of his obligation is South Carolina — South Carolina 
laws and South Carolina jurisdiction. If outrages, more or less abomi- 
nable, have been perpetrated, it was the business of Mr. Attorney Gene- 
ral to see that they were properly prosecuted by the State Courts. As 
Attorney General of the State, he has no official right to be here. Ke 
is here, then, under the operation of some retainer. He is no more a 
knight errant than we are ; ^and, from my knowledge, derived from a 
short acquaintance with him, I do not think he has any jiarticular desire 
to play knight errant. My colleague and myself, then, are in the same 
condition in which he is placed ; he is discharging a professional duty, 
and so are we; and, as we shall respectively discharge it, we will be en- 
titled to credit, or not. That he is entitled to credit, nobody more wil- 
lingly acknowledges than I do. I have listened to his efforts, during the 
progress of this trial, and to his argument before you on Saturday, with 
unmixed delight, and I saw in it, throughout, the evidence of coming 
eminence because of existing ability. I believe, if he pursues the pro- 
fession as he has commenced it, it will place him — if he is not already 
placed — at the very head of the profession which even now he adorns. 

But Mr. Attorney General has remarked, and would have you sup- 
pose, that my friend and myself are here to defend, justify or to palliate 
the outrages tl^at niay have been perpetrated in your State by this asso- 
ciation of Ku Klux. Pie makes a great mistake as to both of us. I 
have listened with unmixed horror to some of the testimony which has 
been brought before you The outrages proved are shocking to hu- 
manity ; they admit of neither excuse or justification ; they violate every 
obligation which law and nature imposes upon men ; they show that ihe 
parties engaged were brutes, insensible to the obligations of humanity and 
religion. The day v*'ill come, however, if it has not already arrived, when 
they will deeply lament it. Even if jus. ice shall not overtake them, there 
is one tribunal from which there is no escape. It is their own judgment, 
that tribunal which sits in the breast of every living man — that smal], 
still voice that thrills through the heart, the soul of the mind, and as it 
speaks, gives happiness or torture — the voice of conscience, the voice of 
God. If it has not already spoken to them, in tones which have startled 
them to the enormity of their conduct, I trust, in the mercy of Heaven, 
that that voice will speak before they shall bo called above to account 
for the transactions of this world ; that it will so speak as to make t lem 
penitent; and that, trusting in the dispensations of Heaven, whose justice 
is dispejised with mercy, when they shall be brought before the bar of 



420 

tlieir great Tribunal, so to speak, that incomprehensible Tribunal, there 
will be found, in the fact of their penitence or in their previous lives, some 
grounds upon which God may say Pardon. 

Gentlemen, you aie not, therefore, to be prejudiced against my friend 
and myself because we are here, and because we have engaged in the de- 
fense of the man on trial. Be assured that if I believed he was the mur- 
derer of Williams, he would find uo defender in me ; but we are both 
here for a different purpose. We believe — and from the course of the 
studies in which we have been brought up, we might be excused for be- 
lieving — that we understand the political institutions of our country, and 
with that understanding, we both came to the conclusion that the two 
laws of 1<S70 and 1871, under which these proceedings in your State had 
been going on for some time, were unconstitutional, and violative not 
only of the rights of your State, but of every State in the Union, as well 
as the rights of the individual citizen. We came, therefore, to see if 
that question, or some one question arising under those laws, could not 
be transmitted to the Supreme Court of the United States, whose judg- 
ment would fix, in these respects, the true construction of the Constitu- 
tion. We have succeeded in part. You have heard, I suppose, gentle- 
men, and understood, during the progress of this trial, that a criminal 
cape can be brought before the Supreme Court of the United States only 
because the" tribunal before which such a case originally comes divide in 
opinion. The Court have divided. 

There are here, now, two questions before you, upon which their ulti- 
mate decision has not been pronounced. They may divide upon them, 
and they, also, can be carried to the Supreme Court of the United States; 
but whether they go or not, there is one to go there, and I hope, when the 
time comes for the discussion of that question in that tribunal, I shall 
have the happiness to meet the learned District Attorney and my friend, 
the Attorney General, if so long an absence from his official duties will 
permit him to be there. Then we will see who was right and who was 
wrong. 

Now, gentlemen, with these remarks, which, as I told you, I thought 
were not inappropriate to the condition in whichi stand, let me proceed, 
first, to state what are the points involved in this indictment. It origi- 
nally had three counts, tis the lawyers term it; that is, three separate and 
independent charges of crime or misdemeanors, neither dependent upon 
the other, each separate and distinct. What were they? The first was 
conspiracy, by intimidation and other illegal means, to prevent colored 
men from exercising the right of suffrage, in October, 1872. The second 
was for conspiracy to deny to James Williams the right to bear arras. 
The Court (that question having been before them in an antecedent case, 
the moment that particular count was stated by the District Attorney), 



421 

said, " we cannot try that under this law as yet." But the District At- 
toi'ney, in a moment almost of professional enthusiasm, abandoned what 
he had said, more than once, was the very thing he wanted to try. He 
seemed even to treat, although I am sure he did not so design, the sug- 
gestion of the Court with disrespect, by proclaiming, in the face of the 
Court, " I will tear th-e indictment to pieces." We had done that for 
him, in a great measure. And his mode of tearing the indictment in pieces 
was to say that they did not propose to risk the part which formed the 
offense contained in the second count. I do not know, from what ap- 
pears to my colleague and myself, that he has not some lingering hope 
that he may induce you to convict, not on any charge contained in this 
count, but because you may be induced to believe that the charges con- 
tained in the other two counts are more or less proved by the charge 
contained in the second count. If he shall state that in his speech, gen- 
tlemen, there is the corrector [pointing to the Court], and the correction 
will be sure to be administered. I think, then, the third count is not for 
conspiring to prevent poor Williams from exercising the right of suffrage 
in October, 1872, but to punish him for having exercised the right in 
1870, or some antecedent period. There was no antecedent period at 
which he could have voted, except October, 1870, and the charge, there- 
fore, is, that these men went to his house for the purpose of punishing 
him — frightening him — not with a view to jirevent his voting in 1872, but 
to punish him for having voted in 1870. And, when do they say that 
they went there for that purpose ? On the 6th of March, 1871, several 
months afterwards. 

ISTow, as you will see, gentlemen, each of the two counts that remain — 
the only two counts which can be submitted to you — the only two counts 
upon which you have a right to consider the evidence as applying here — 
are the first, which denounces him for entering into a conspiracy to pre- 
vent voting by his race in October, 1871, and the other for conspiring to 
punish Williams, as a voter, for voting at the antecedent election of 
1870. 

I will proceed to consider those two counts in their order, gentlemen ; 
and, if I shall weary you, I beg you not to hesitate to let me know it. I 
will endeavor, however, not to do so. The conspiracy, then, in this 
count, is a conspiracy against the elective franchise. The particular ex- 
ercise of the elective franchise against which the cons])iracy is alleged to 
have been made was the franchise to be exercised in October, 1872. Is 
there any evidence of that, gentlemen ? Mr. Attorney General said that 
there wex*e two modes of establishing a conspiracy — one, the written evi- 
dence, exhibiting the object and scope of the conspiracy ; the other, acts 
in furtherance of the conspiracy. 

What is the written proof — the written proof upon which the prosecu- 



4-22 

tiou relies ? Some of the witnesses say that, as far back as '68, a con- 
spiracy was, formed, with the view of defeating or hindering the exercise 
of the franchise l)y the colored race, and that portion of the white race 
who, in the judgment of the i^rosecution, seemed |o be entitled to a special 
honor, because they belonged to the Radical party in 1868. Who proves 
it? One or two witnesses say that they understood the association to be 
a political one. One, only one man swears that he understood that the 
political object of the association was to be accomplished by killing white 
Radicals and whipping the black. Who is he? A Mr. Gunn ! Nobody 
else. Not another witness who has been examined on either side states 
that. Some of them say that they believed it to be political ; they be- 
lieved the object was to put down the Radical party, and, as a consequence, 
to elect the Democratic party. But Guijn stands alone in swearing that 
it was to be achieved by the assassination of the white Radicals, and the 
merciless whipping of the blacks generally. If reasonable conclusions 
can be drawn from evidence, there is not one word of truth in his state- 
ment. Why did he become a member of the order? What did he do? 
He went upon one or two raids. This is the man Avho, from a mere 
sense of duty, divulged the secrets of a conspiracy of which he was a 
raember, and in the execution of which he joined in raids — tells you that 
he knew, when he joined it, that the object was to assassinate the whites, 
and to lacerate the blacks, and yet he continued to be an honored mem- 
ber ; went upon raids wutli the full knowledge that the design of the con- 
spiracy was what he states ; participated in the efforts to carry out that 
design, and when upon the stand didn't blush to tell you that it was not 
until some months afterwards that he woke up to the obligation, which, 
as a citizen of the United States, he was under, to inform the authorities. 

Mr. Corbin.. I notice the distinguished counsel is misrepresenting the 
testimony, Mr. Gunn did not go on any raids. 

Mr. Johnson. Well, my recollection was otherwise ; but I will assume 
now that the counsel is more correct than I am, because he had not only 
the evidence given on the stand, but he had it in advance, all written 
out. 

Mr. Corbin. That is a mistake again. 

Mr. Johnson. Well, I don't know ; if somebody didn't write it out, then 
you had a paper before you that there was nothing written upon, that is 
all. But, if nobody wrote it, and if there was no paper before you in 
writing, there was, at your elbow, one who could tell you everything. I 
don't mean the Attorney General ; I mean the gentleman who has figured 
so nuich in carrying out the purposes of his command ; wdio has ordered 
seizures to bo made in the night. I am not blaming him if he was acting 
under orders. He has had the witnesses, more or less, in his own camp, 
probing them to the bottom, and has been acting throughout this trialj 



423 

quasi, as legal adviser, which I suppose he is ; if he is not, perhaps he 
thinks himself admirably qualified to be. Don't understand me, gentle- 
men of the jury, as accusing intentionally the gallant Major with any 
wrong ; but I think it will not be considered impraper in me to say what 
the General-in-Chief of the Army of the United States has said more 
than once, that I think an officer of the United States might be better 
employed. So said Sherman ; so say I; and so, I think, when the history 
of the times is written, will say posterity. 

What does this innocent and fair man, who -has become wakened up 
to the enormity of the conspiracy, of which, until then, he had been a 
willing member, whether he raided or not ? He goes to Georgia ; attends 
meetings of this association ; pretends to be one of them ; conceals the 
fact that he had then, or on any day thereafter, intended to disclose the 
secrets which he imagined were in his own bosom ; deceives his confede- 
rates ; plays false to his co-conspirators. He had taken the oath not to 
divulge. Well, what does he do? He learns that Mr. ilkerman, lately 
Attorney General of the United States — not no^v — is some sixty miles 
off, in Georgia. It would be a pretty good thing in him if he took the 
railroad and made himself know-n to Mr. Akerman. So he did. He 
found the Attorney General ; he told the Attorney General, as he says, 
substantially what he has testified here. But it was pure patriotism ; he 
did not look to profit ; his animating principle was justice; he was in- 
spired with the love of breaking up an association dangerous to the com- 
munity, of which he all along had been a member. And having unbo- 
somed himself to Mr. iVkerman, he wended his way back Avithout a dol- 
lar ; paid his own expenses to and from the village where he found Mr. 
Akerman ; and after he returned— about two or three Aveeks antecedent 
to this trial — his curiosity became aroused ; he likes to see handsome 
things, and it induced him to go to Washiugtou, a city that he had never 
seen ; curiosity and his love of the arts carried him there ; he Avanted to 
see the city of Washington, the capital of our country ; its great build- 
ings, its beautiful squares ; to partake, I suppose, of its refined society ; 
and he visited Washington. What did he do Avhenhe got there? Why, 
he couldn't see it Avell without stepping into the Attorney General's of- 
fice ; almost the first thing that he did Avas to go into the Attorney Gene- 
ral's office. For Avhat? He had told the Attorney General, he says, all 
that he kneAV at the interview he had Avith him in Georgia. Why did 
he go there again just before these trials commenced? Merely for the 
pleasure of looking at Mr. Akerman ? Why, therei may be a pleasure 
in that ; I don't knoAV ; he is quite a good looking man ; but didn't he 
go. for some other purpose ? What Avas that purpose ? It Avas to get the re- 
Avard, either directly promised before or Avhich. he knew Avould then be 
promised, if he came here and put himself upon the stand as a Avitness. 



424 

Is not the proof conclusive? ^yllat did Akerman listen to him for? 
The duties of this office, under all circumstances, are overwhelming. 
Why did he give this man, whom he had only seen once, an interview 
in relation to these triaJs? Can anybody answer? Didn't he promise to 
Akerman, in Georgia, that he might be relied upon by his evidence to 
support these prosecutions? He says, " No, no ; I had no such design ; I 
visited Washington for no such purpose." What followed ? Akerman 
goes to him, or he goes to Akerman — it is immaterial which — and making 
his way through the adjoining room, in order to leave the office of the 
Attorney General, the clerk of the Attorney General says to him, "Here 
are two hundred dollars for you." What was the clerk going to do with 
two hundred dollars there ? That is not a very safe place, from all ac- 
counts, to leave two hundred dollars on the desk, unless it is to be at 
once used. What occasion had the Attorney General or his clerk for 
$200 that morning at that time? Why did the clerk arrest him as he 
was coming through the roomi, and tell him, " Here are S200 for you ?" 
Why did he count it out ? Why did he make him give a receipt for the 
money? It was because the money was paid in the execution of a 
promise that he should be paid. My friend, the Attorney General, told 
you that if we could only prove that such a promise was made antecedent 
to his disclosure, it would go very far, if not entirely, to destroy his evi- 
dence. Why, isn't it proved, gentlemen, by the circumstances? You 
do not expect that man to prov - it ; and they have not examined Mr. 
Akerman to disprove it ; but just about this time he would be at leisure. 
Not a word from Akerman or anybody else ; but this man suddenly and 
unexpectedly receives from one of the officers of the Attorney General 
two hundred dollars, and then he has the assurance from the stand to tell 
you, in answer to the questions propounded to him by my colleague, that 
he does not know what it was given to him for. Do you believe that he 
conjectured, when he was pushed by the examination, that it may have 
been paid to him to pay the expenses which he had incurred in visiting 
Mr. Akernum in Georgia, a distance of sixty miles, the fare for which, I 
suppose, would have been five or six dollars, perhaps the same to return — 
ten or twelve dollars in all. What a generous man Mr. Akerman is — 
with the public money ! If he had given his own money to a friend, who 
was poor and unable to have borne the expense, it would have been a 
different thing ; but he pays him out of the public purse. What right 
had he to do that? He paid him out of the public purse for his ser- 
vice'B, which, as he imagines, were rendered the public ; for, if not, he 
himself would be a defaulter to tlie amount of $200. Why did he take 
a receipt? It was to show, after the money was 'paid, that he might not 
be called upon to explain. There was, apparently, nothing in the De- 
partment, in the office, to show that there was any debt due from the 



425 

Government to Gunn ; yet there was evidence in the breast of Akerman, 
and, from the very nature of the prosecution, that it was paid for ser- 
vices rendered and services to be rendered, and he comes here with the 
two hundred dollars in his pockets, if he has not spent it, and he is the 
only witness who swears that the purpose of the conspiracy was to mur- 
der the whites and lacerate the backs of the colored people. Gentlemen^ 
there is not a word of truth in it. He must be very little acquainted 
with the ways of men who can put any confidence in such a story. 

Well, now, what have they proved ? They call up a witness named 
Hope, one named Caldwell, one named Kirkpatrick, and one named 
Ferguson, members of the Klan, each one of them initiated on or about 
the same time, and each tell you that he considered the purpose of the 
association — was so informed when he entered into it — was self-protec- 
tion. Was there no reason, gentlemen, to suppose that self-proteotion 
might prove to be necessary ? Why the air had been heated by confla" 
gratiou after conflagration ; arms had been placed — whether wisely or 
unwisely I don't stop to inquire — in the hands of the colored race, and 
they were divided into companies; arms of the best kind, arras against 
which no squirrel gun would be any protection whatever — no pistol • 
arms which, in the hands of skillful men — and they could soon bgcome 
gkillful — would kill almost at a thousand yards. Threats filled the air;, 
an association had been formed not peculiar to South Carolina, but to 
the whole country, more or less, called the Union League — a secret associa- 
tion. It is not for me to say that it was not an honest and patriotic asso- 
ciation ; but i^till a secret associaJ:iou. And all these things combined, 
filled the minds of men and women with the thought that it would be as 
well that they should guard themselves against what might result from 
that state of things. No black man's house to be burned ; no attempt to 
burn any; the conflagration extending far and wide, night after night, 
so that each poor lady, as she laid dovrn in h(^ bed at night, had reason 
to fear that she might wake and find her house in flames. What is the 
husband to do? What is the brother to do? What is the son to do? 
Band themselves together as a defense against any such threats as were 
apprehended ; and these four men tell you that, as far as they knew any- 
thing about it, that was the whole extent of the conspiracy. Don't they 
tell the truth ; do not the District Attorney and the Attorney General 
believe that they tell the truth ? If they do not, why did they bring 
them here as witnesses? Something they have proved upon which they 
rely, but when they ask you to put confidence in their statement — part 
of the statement — they at the same time deny that they possessed any 
title to confidence in relation to the whole statement. 

You have it, therefore, from four of the prosecuting witnesses, that the 
sole purpose of the association .was self defense; and you, gentlemen, 



426 

would have been parties to such a conspiracy. Suppose the whites had 
been burning the houses of the blacks ; suppose the whites had been 
threatening the women and children of the black race ; would anybody 
blame the blacks for combining to guard against such a catastrophe? 
AVhy, certainly not. Self defense is a law of nature, written as a duty 
on the heart of ev'ery man as he comes from the hand of his Creator. 

Well now, gentlemen, this young man joined in 1871 — the young man 
now upon trial — joined the association in January, 1871. Is there any 
proof that any body told him what the object of the conspiracy was in 
relation to the blacks ? Xot a word — not a word. He never was at but 
one meeting of their association, and upon this raid. And what did he 
suppose was the object of the raid ? Why, look at the witnesses upon 
the part of the Government, gentlemen ; I cannot state all their names. 
They told you that the object of the raid of the 6th of March was to ob- 
tain guns, said to be in the hands of black men. Was that the object ? 
If it was, it was not the object stated in either of those counts ; if that 
was the design, as ftir as this indictment is concerned, it was an innocent 
design. Wasn't that the object ? I think there are nine men who have 
been examined — their names I have forgotten — 

Mr. Staubery, (reading.) Lindsay, Long, Lowry, Fudge, Hinson, 
O'Connell, Bratton, and • 

Mr. Johnson, (continuing): There are nine — four colored and five 
white — they tell you that, as far as they knew — and they went upon the 
raid — the purpose was, to get these arms. Now, suppose it was — 

Mr. Corbin (interrupting): None of these parties were upon the raid. 

Mr. Johnson. Some did go on the raid ; however, I don't know that 
they all wont. They speak — 

Mr. Stanbery, (interrupting): Their witnesses went on the raid. 

Mr. Johnson, (continuing): Their witnesses»went on the raid. Now, 
gentlemen, what was done 3 As far as this young man is concerned, he 
Avent ; he was ordered to dismount, stand with the horses, said several of 
the witnesses examined on the part of the Government, against him. 
There is no charge from them, as far as they have stated anything about 
it, except to procure arras ; he remained with the horses. On their way 
there they tried to get guns ; on their way back they tried to get guns ; 
they got guns, and at Williams' house ; and there is not a particle of 
evidence, even, calculated to make you suspect that this young man en- 
tertained any other impression than that the object of the raid, on that 
night, was to get the guns from the hands of the blacks. Now, that may 
or may not be our offense, but that is nof the offense charged ; that may 
or may not have been justifiable ; but that is not your inquiry. They 
have abandoned that charge. 

But the fact of making the charge — I beg you to bear in mind, the fact 



* 427 

of making the charge — that this man, on that night, entered into the con- 
spiracy to obtain arms, is evidence to show you that, in the judgment of" 
the prosecutor, that v/as the object. They wanted a double chance of 
convicting the young man ; if they failed in convicting him on the first 
count, and failed in convicting him on the third count, they sup- 
posed, upon producing evidence that the purpose of the raid was 
to procure arms, they would be able to convict on the second count, but 
the accusation to be found in the second count is at war with the accusa- 
tion to be found in either of the other counts. |This second court charges 
no purpose to interfere with the votes of the black race, charges no pur- 
pose to punish anybody for having voted, but is content with accusing 
the defeiidant with having, contrary to the Act of Congress, or some other 
law, Avhich they tell us is to be found in the statute book, denied to Wil- 
liams the right, which he had, to beawarms. Now, gentlemen of the jury, 
suppose these four men, or however many there were — I forget the number 
— whom the Government has examined, Avho are members of the association, 
went upon the raid, Avere now indicted before you for having conspired to 
defeat the blacks from voting, denying the right secured by the first Sec- 
tion of the Act of 1870, or had been charged with punishing Williams 
for having voted in 1870, would you convict them, supposing their state- 
ment to be true ? They can tell their story'; the prosecutor has placed 
the defendant in a position in which he cannot be heard in his own de- 
fense. What right have you to suppose that he intended anything else 
than what was intended by the witnesses examined on the part of the 
Government? If you would not bonvict them, I do not see, gentlemen, 
how it is possible for you to convict the accused. He stands in a like 
condition exactly. They bring up the conspirators; they do not propose 
to proceed against them ; they put them upon the stand, and upon their 
own statement they would have no right, legally, to proceed against him. 
But they select this poor young man, just arrived at maturity, and ask 
you to convict him without the least particle of evidence that he knew 
anything of the object of that raid, except what was known to each one 
of the four men the Government is relying upon to convict him; first, 
upon the ground'stnted 'by the Attorney General, that when a conspiracy 
is proved to accomplish a particular purpose, and brought , home to the 
knowledge of all in the conspiracy, the act of any one in the prosecution 
of the conspiracy is evidence against the rest. 

NoAv, you are asked to convict this young man because Dr. Bratton, or 
some others associated W'ith Dr. Bratton, on the night of the 6th of March, 
perpetrated a foul and disgraceful murder upon poor Williams. You 
are asked to convict him, because, upon some other occasion, upon some 
other raid, in which the defendant was not concerned, they perpetrated 
a gross outrage upon another man named Raiuey, and upon his wife and 



428 

his daughter, of which he is just as innocent as either of you, and not to 
be convicted, therefore, except upon the ground that the act of one is the 
act of all. If the act of one is the act of all, why, in the name of justice, 
is it that these prosecutors have not brought before you those criminals 
upon whose testimony they are relying for the purpose of securing the 
conviction of this alleged criminal. 

Gentlemen, I'm wearing out my own strength ; I have not time nor 
strength to go through wnth this proof, and there is but one other con- 
sideration which, before closing, I will trouble you with. " Oh ! " says 
Mr. Attorney General, " it was a horrid association — I do not use the 
language, he uses much better than mine — "it was a horrible association; 
its object was to put down the Radical party, not any political principle, 
that was not the purpose, but to prevent the Iladieal party from coming 
into power or remaining in power.' » Wh}'^, that is something new to me, 
that that should be considered an offense. I wonder what was the object 
of the Union League, if that was not to put down the Democratic party, 
if that was not to guard against their coming into power ? I suppose you 
all know what was the purpose of the League. It was to effect a com- 
bination to accomplish a political end — an end which those concerned in 
the League had a right to accomplish if they did it by any means that 
were not criminal or wrong in themselves. 

Now, suj^pose then, gentlemen — I am imagining cases, or, I am about to 
imagine a case — suppose you apprehended what might be the result of 
placing in the hands of the Radical party the government of South Caro- 
lina ; suppose you apprehended that one result, and a speedy result, 
would be to treble or quadruple the expenses of the goverumet, would be 
to enhance the tax, if not in nominal amount, by enhancing the assess- 
ment of the value of the property; suppose you believed — I am not stat- 
ing that the fact is so — that the result would be to inaugurate an era of 
corruption, and that that would pervade every branch of the 
State Government, Executive and Legislative. Suppose that you 
believed that a debt of five or six millions would, under Radical manage- 
ment, swell into a debt of fifteen or twenty millions of dollars ; suppose 
you believed that the effect would be to tarnish the fair character of South 
Carolina, to blight her otherwise pure financial faith, to strike down her 
credit in the market; would you think it any offense, if such things are 
conceived as possible — such»results considered reasonable — to bind your- 
selves together to put down the Radical party. And, gentlemen, when I 
say the Radical party, don't understand me as meaning to impute that 
there is not in the masses of that party as much honesty as there is in the 
masses of the other party. Bad men are to be found in all parties, and in 
these days corruption fills the air ; every branch of the public service, 
more or less, is marked by it. Every day brings to the public view some 



429 

startling defalcation ; every hour they gink deeper into tlie faith and 
honor of South Carolina. Who is South Carolina ? Gentlemen, from 
her politicians in modern times I greatly dissented ; but who was South 
Carolina in former times ? Who were the Marions, and the Sumters, and 
the Moultries, and the Johnsons, who, with dauntless bravery and match- 
less skill, carried our fathers through the perils of the revolution? South 
Carolinians ! Who were the men who figured most conspicuously in the 
Convention that gave to the world, as well as to us, the purest form of 
government ever devised by man under Providence for man's govern- 
ment? The Pinckneys and the Rutleges ! Who were those who con- 
tributed, in the councils of the States, to make the name of South Caro- 
lina honored throughout the land? The LowndesesandCalhouns ! Then, 
under their management. South Carolina was one of the most peerless of 
the States. Now look at her! Her sons — and you, gentlemen of the 
jury, are equally her sons with those of the white race — her sons, all of 
them, if they do not now, will, ere long, wish the government of Soutli 
Carolina had not fallen into Radical hands. 

A word further, and I shall have done. The colored race and the 
white are embarked in the same great experiment. You have the same 
interest in that experiment that the white race have ever had or can 
have. You must wish — I am sure you do — that the prosperity and honor 
of South Carolina may be revived; and, whether 3'ou be Radicals or not 
Radicals ; whether you be Democrats or Republicans, I am sure you will 
see to it that, as far as you can accomplish such an end — you will use 
your best efforts to redeem South "Carolina from the sad plight in which 
she is now placed. , 

A word more, and I am through. Look at that young man! Mr. At- 
torney General could not help using the words that were in his heart, 
and saying he was enticed into that conspiracy ; he could not help saying 
to you : " I pity him." He could not help saying that he wished that 
the men who perpetrated these outrages could be brought to justice. He 
cannot wish it more than I do — properly brought to justice. P>ut this 
young man, who, as I understand, went through the perils of the un- 
happy civil war with manliness and courage, is nov; the husband of a 
young wife and the father of a little child. It is not proved that he 
made any attempt to do anything wrong, but upon him the wrongs done 
by others are to be visited, in the view of the prosecuting counsel, upon 
some notion of the law. He is to be condemned, and, whatever may be 
the judgment the Court may award, is to suffer that judgment. Can you, 
gentlemen of the jury, say guilty as to him upon the testimony of men 
who, by their ow^n confession, are as guilty as he is? 

Gentlemen, I am done. 



430 

ARGUMENT OF THE HON. D. T. COEBIN. 

Max] it Please the Court and Gentlemen of the Jurxj : 

It is with pleasure that I announce to you the approach of the termi- 
nation of the trial of this cause. I have no doubt it is a gratification to 
you and to the Court. . You, gentlemen, have sat with patience, listening, 
day after day, to the argument of counsel upon legal questions, about 
which you are supposed to know nothing. The distinguished counsel on 
the other side have indulged in the widest latitude in the cross examina- 
tion of witnesses, and in the introduction of testimony. In fact, the 
widest range possible has been permitted, and sufficient time been con- 
sumed to tire the patience of us professional gentlemen, who are ac- 
customed to such labor ; hence, how far more the patience of lay-men, 
to which class you belong. But, gentlemen, throughout this trial, what 
I have said, what I have done, and what I am about to say, I have 
said and done, and am about to say, in the discharge of a high pub- 
lic trust and duty, as the prosecuting officer of the Government of the 
United States. I take no pleasure in the prosecution of this single 
individual. I take no pleasure in the prosecution of any criminal, in 
his sentence, or in his punishment. The Government, which it is my 
duty and pleasure to serve, is a Government of law. It is a Govern- 
ment that guards with jealous care the rights of its citizens — the high- 
est cannot escape its power, and the lowest feel its protecting care. 

Gentlemen, we have lived near a century in the last ten years. The 
ballot, which is the symbol of power in this Government, has passed 
into the hands of those who were lately slaves, to be wielded by 
them in common with the white citizens of the country. The bal- 
lot, which has heretofore been, in the eyes of the colored race, the 
symbol of oppression, has now become to them the symbol of protection 
and the symbol of power. Not only the symbol, but the power, in fact. 
The colored race, and I rejoice in it, has been emauci{)ated. Two huu-* 
dred years of unbroken bondage have been terminated, and the slave 
who once travelled his lowly round, driven by the lash of a master, now 
stands forth a freeman, clothed with all the rights of an American citi- 
zen. In this case, gentlemen, we have charged, atul we have attempted 
to prove, that these newly acquired rights, this franchise conferred upon 
the emancipated Africans, has been conspired against; that a terrible 
cons})iracy has been inaugurated, not only in this State, but in adjoin- 
ing States, to rob our colored citizens of African descent of their 
newly acquired rights — the rights of American citizens. 

Gentlemen, I do not wish to indulge, and it is not my habit to indulge 
in general discussions foreign to the issue before the jury. The gen- 
tlemen who have preceded me, the distinguished counsel upon the 



431 

other side^ have seemed to be addressing themselves, durmg a large 
portion of their time, to somebody else than you — doing something else 
rather than trying to aid your minds in the solution of the questions 
before you, namely, the guilt or innocence of this prisoner. Gentle- 
men, I shall reply to what they have said, that I deem important to 
reply to, in the progress of the argument. 

First. What is the defendant charged with ? The first count of the 
indictment charges that the prisoner, with others, unlawfully did conspire 
together, with intent to violate the first Section of the Act entitled " An 
Act to enforce the rights of the citizens of the United States to vote in 
the several States of this Union," &c., " by unlawfully hindering, pre- 
venting and restraining divers male citizens of the United States, of 
African descent, above the age of twenty-one years, qualified to vote 
at any election of the people in said district," &c., and by other un- 
lawful means not allowing them to vote at an election to be held in 
October, 1872. The questions, then, are, under this first count : First, 
Did such a conspiracy exist? Second, Did this prisoner at the bar enter 
into, or become, a party to it ? Both of these are questions of fact; both 
are to be determined by you, froih the testimony given you here in Court. 
First, Did such a conspiracy exist? Upon that question,, we shall pre- 
sent to you the constitution and by-laws of the organization ; then the 
testimony of its members, those who wore its gowns, used its signs, car- 
ried its pistols, blew its signal whistles and participated in its crimes. 
Finally, the testimony of the poor creatures Avho felt its blows, writhed 
under its scourges, and were made widows and orphans by its murders. 
First, the constitution — and you will mark that there is no question, no 
dispute about its authenticity. 

The distinguished counsel on the other side, in the conduct of this case, 
have never hinted that this was not the constitution of the Ku Klux 
Klan ; they have never, by testimony or argument, attempted to persuade 
you 'that this was not a genuine instrument, a plan of organization under 
which the operations of this infamous order were carried on. What does 
it propose ? The very first principle, the foundation stone upon which 
it rests, is : " We are on the side of justice, humanity and constitutional 
liberty, as bequeathed to us in its purity by our forefathers." Gentle- 
men, what does that mean — "constitutional liberty as bequeathed to us by our 
forefathers?" Let us dwell for a moment upon it. Our forefathers 
framed a Constitution which the Supreme Court of the United States has 
declared, over and over again, recognized slavery, protected slavery, and 
that the slave escaping from the State where he was held to labor, into 
any other State, should not, in consequence, escape from bondage, but 
should be delivered up to the person claiming his service. The Supreme 
Court of the United States said that the master might pursue his slave 



432 

into any State in this Union and return liim to bondage. This was the 
Constitution, this the constitutional liberty, in reference to the colored 
man, that was handed down to us by our forefathers. That Constitution, 
the Supreme Court of the United States said, meant this, that the black 
man had no rights that the white man was bound to respect. 

Mr. Johnson. They never said' any such thing — I beg your pardon. 
JNIr. Corbin. My distinguished friend may look in 19th Howard, in the 
Dred Scott case. 

Mr. Johnson. The Judge that pronounced that decision is dead. If 
you will look into that decision you will find that, so far from stating what 
the counsel says was stated, it was said that there was a time when a 
black man was supposed to have no rights which a white man need re- 
spect. 

Mr. Corbin. But that was the ancient Constitution, and the Court said 
that that view obtained. 

Mr. Johnson. He didn't say any such thing. If there is any doubt of 
it, gentlemen, we can produce the books ; the highest Court in this coun- 
try used no such language. The authority they relied upon was the leg- 
islation of the State, not the legislation of Congress. He cited, for 
the purpose of showing the slavery in the colonies and separate States — 
Connecticut, Massachusetts and two or three Northern States — for the 
purpose of showing that slaves, or blacks, were treated as if they had no 
rights tliat ought to be respected, though he regretted it. He is dead now, 
and it is due to him that he should be vindicated from what seemed to 
be outrageous misrepresentation of his judgments and declarations. 

Mr. Corbin. Gentlemen, the book is there and the decision is there ; it 
is to be read of all men ; and I am not the only one in this country, but 
one of millions, who look upon that decision as a stain upon the records 
of the Supreme Court of the United States ; but it was a decision of the 
Supi'eme Court of the United States, and as such, gave laiv to the coun- 
try. But, gentlemen, however that may be, there is no doubt about 
this, that this Article of the Constitution protecting African slavery, was 
in the Constitution as handed down to us by our forefithers, and that is 
what is meant in this first Section of the Ku Klux Constitution. It 
meant more ; it meant that we stand by the Constitution in that respect, 
as it u'as, not as it is now — not with the thirteenth, fourteenth and fif- 
teenth amendments in it. It means, we reject the results of the late war. 
AVe trample upon these amendments of the Constitution, and we intend 
to destroy and defeat them. That is what this Ku Klux oath meant, be- 
yond cjuestion ; and the distinguished counsel on the other side cannot 
gainsay it by any argument. Now, what do they mean when they say 
constitutional liberty, in its original purity? The thirteenth amendment 
of the Constitution abolishes slavery, and the fourteenth amendment 



433 

protects the newly enfranchised citizen in his right of property, and the 
fifteenth amendment protfects him in his elective franchise. They say, 
we trample upon all ,that; we stand by constitutional liberty as it was 
given to us in its purity by our forefathers. 

Let us examine the next principle of this Ku Klux instrument. "We 
oppose and reject the principles of the Radical party." Not the Radical 
party, but its principles. 

Gentlemen, this ;s but a carolory to the first plank cited. What are 
the principles of the Radical party ? We oppose and reject what prin- 
ciples? Why, gentlemen, if any principle of the Radical party has been 
prominent— if that party has discussed anything during the past five 
years, and has accomplished anything — if it has made a record which 
shall be carried down through the distant ages — it has made prominent^ 
discussed, accomplished and recorded, for all time, the thirteenth, four- 
teenth and fifteenth amendments to the Constitution.- These, in truth, 
may be said to be the principles of the Radical party, and they have 
been the chief objects and results of its labors for the last ten years. 
Other things have been talked about, but these are the foundation intones 
upon which the Radical party was built; and I say to you, gentlemen, 
that when it accomplished the thirteenth, fourteenth and fifteenth amend- 
ments, it had done, I had almost said, more than was done by the early 
revolution in this country, which severed the connection of this country 
from the mother country. These amendments will live when the names 
of parties are forgotten; but if nam'es are remembered at all, they will 
be remembered as principles settled by the Radical or Republican party 
of 1866, 1867, 1868, 1869 and 1870. 

But this organization proposes to defeat, put down, and destroy these 
principles of the Radical party. Gentlemen, this Ku Klux organization, 
Avhich has this instrument for an exposition of its principles, is for the 
purpose of destroying the Constitution as it now is. Is there anything 
to lead you to believe this argument to be untrue ? Read it for your- 
selves. Why have not the distinguished counsel on the other side told 
you what it means; why have they not explained the instrument? They 
could not do it, they had the opportunity day after day, and hour after 
hour. They have heard it read, and it is in proof; you have heard the 
witnesses, and heard, as one after another has come upon the stand, that 
he took that Ku. Klux obligation, first in 1868, and then, from time to 
time, up to last January. 

Mr. Johnson. We did not know the construction put upon it by you. 
You did not call our attention to it. 

Mr. Corbin. The counsel says We have not called their attention to it. 
What did we put it in the case for ? It is the foundation stone and the 
bottom of this organization. Now, gentlemen, how does the Ku Klux 
28 



434 

Klan, the clients of my distinguished friends on the other side, propose 
to accomplish the object set out in this first article of their constitution? 
This constitution and by-laws shall answer. " Each member shall provide 
himself tvith a Ku Klux gown ; each member shall provide himself with a 
pistol, and each member shall provide himself with a signal instrume7it.'' 
A pistol, a Ku Klux gown, and a signal instrument ! These are the 
means. This is the way it proposes to carry out its principles. They 
propose to assault the rights of the colored voters in this country. They 
propose to do it in disguise, with pistols, and, silencing the human voice, 
direct all operations by the sound of a signal instrument. It is speaking 
for itself ; carrying out its full purposes. 

But they say, how do you know the organization is aimed at colored 
men ? We answer, the by-laws say " no person of color shall be a mem- 
ber of this order." Why ? They propose to assail colored people, and 
could not do it if persons of color were permitted within the organiza- 
tion. The purposes announced in the oath, the means by which those 
purposes w^ere to be carried into effect, and the fact that no person of 
color could be a member of the organization, establishes the character 
beyond controversy. This fell devise, this foul design, points to the dark 
deeds of the Ku Klux Klan. Gentlemen, in my judgment, we might 
stop here, and ask for a verdict of guilty against this defendant. Look 
at the paper itself. It alone fixes the seal of guilt upon every member 
of this order, because, gentlemen, remember that a conspiracy does not 
consist in carrying out the objects of the conspiracy ; it does not consist 
in killing Jim Williams ; it does not consist in breaking down houses, 
and in flogging men and women in York County ; that is not the con- 
spiracy ; but the conspiracy is in the agreement, the concerted, united pur- 
pose to do those things. 

But, gentlemen, we propose to go farther, and not only to read j^ou the 
agreement — not only to present to you the constitution of the conspira- 
tors, which the Court will interpret to you — but to show you how this Ku 
Klux Klan carried out its fell purposes. We will show you that the 
constitution and by-laws, and acts of the members, the voice of these mid- 
night raiders, all agree and harmonize together; and, gentlemen, having 
shown you this, we shall ask you to pass your judgment upon the con- 
spiracy. 

Gentlemen of the jury, my assistant, the Attorney General, has done 
me the kindness to get the book to which I alluded in the early part of 
this argument. It is 19 Howard, page 407, and contains the decision of 
the Supreme Court of the United States, and inasmuch as the distin- 
guished coansel on the other side chose to contradict me most emphati- 
cally, I now propose to read in your hearing what the Supreme Court 
said in that case. It is as follows : 



435 

" In the opinion of the Court, the legislation and histories of the times, 
and the language used in the Declaration of Independence, show that 
neither the class of persons who had been imported as slaves, nor their 
descendants, whether they had become free or not, were then acknowl- 
edged as a part of the people, nor intended to be included in the general 
words used in that memorable instrument. 

" It is difficult, at this day, to realize the state of public opinion in re- 
lation to that unfortunate race, which prevailed in the civilized and en- 
lightened portions of the world at the time of the Declaration of Inde- 
pendence, and when the Constitution of the United States was framed 
and adopted. But the public history of every European nation displays 
it in a manner too plain to be mistaken. 

" They had, for more than a century before, been regarded as beings of • 
an inferior order, and altogether unfit to associate with the white race, 
either in social or political relations, and so far inferior that they had no 
rights which the white man was bound to resjiect; and that the negro 
might justly and lawfully be reduced to slavery for his benefit. He was 
bought and sold, and treated as an ordinary article of merchandise and 
traffic, whenever a profit could be made by it. This opinion was at that 
time fixed and universal in the civilized portion of the white race. It 
was regarded as an axiom in morals as well as in politics, which no one 
thought of disputing, or supposed to be open to dispute ; and men in 
every grade and position in society daily and habitually acted upon it 
in. their private pursuits, as well as in matters of public concern, without 
doubting for a moment the correctness of this opinion." 

This, gentlemen, was constitutional liberty of the olden time; this was 
constitutional liberty in its purity, as bequeathed to us by our forefathers, 
as I stated a moment since. I propose to introduce to you two classes of 
witnesses to interpret this memorable constitution of the Ku KIux Klan. 
First, I propose to introduce those who have been inside of the Klan, who 
have learned its dread purposes, worn its gowns, carried its pistols, and 
blown its signal whistles. Then, gentlemen, I propose to introduce to you 
those who have felt its blows, v/rithed under its scourging, and been made 
widows and orphans by its cruelty. 

First comes Mr. Gunthorpe. Gentlemen, you heard him u[)on the 
stand. He said: I joined this organization in 18G8 ; I took the same 
oath, as near as I can remember, as that in this Ku Klux constitution. 
I understood, when I joined it, that it was a society for mutual protec- 
tion. When I got inside of it I learned that it was an organization in 
the interests of the Democratic party, and I rejected it and withdrew 
from it. I didn't know that there was any danger from colored peoi)le, 
but did not know what might occur, and I joined the society for mutual 



436 

protection. When I got into it I then found that it was a cheat and 
a lie. 

Q. Mr. Guuthorpe, how did you understand the purposes of the order 
would be carried out in 18GS ? 

Answer. I was told that at a meeting of the Klan it had agreed that 
we should go to Rock Hill, and, by crowding the polls, prevent the Radi- 
cals from voting. 

This, gentlemen, was what this Klan proposed in 18GS, as it interpreted 
itself; this was what they meant by being on the side of constitutional 
liberty as bequeathed to us by our forefathers ; this was what they meant 
by opposing the principles of the Radical party, viz: depriving Radical 
voters at the polls of the right to vote. 

Does any body dispute Mr. Gunthorpe ? Is there a person here who 
questions his veracity? You have seen him on the stand. No fairer, 
franker, or bolder witness ever stood there. He cannot be impeached. 
Who is the next witness? Mr. Gunn. We have had, this morning, uu 
attack upon that gentleman. The distinguished counsel on the other 
side has followed him to Georgia; followed him to Washington ; followed 
him back to South Carolina, and followed him to this court. And what 
do they say ? They say he is not entitled to be believed, because he re- 
ceived from the Government at Washington, two hundred dollars, for the 
time and loss to his business in seeing the Attorney General of the United 
States, and giving him the information that he possessed, receiving that 
compensation two months after the services were rendered. 

Now my associate, the Attorney General, has told you, and he said 
what was true, that no motive of a pecuniary character can be aUributed 
to Mr. Guuu. He was not told in Georgia that he would be paid if he 
went to Attorney General Akerman, but he went to Cartersville, Georgia, 
to see him, and was not promised, if he went, one'single cent. He was 
without pay until he found himself in Washington, four months after, 
when he went to the office of the Attorney General, and there the Attor- 
ney General gave him this compensation for his time and trouble. If the 
compensation had preceded the information, then it might be fairly said 
that it was tainted with purchase money, and some slur cast upon it. Mr. 
Gunn, through his brother-in-law, to whom he revealed that a horrible 
crime was about to be committed up in York County, S. C, against Mr. 
Wallace, was reported to Attorney General Akerman. He did not seek 
the Attorney General first, but, having revealed the fact to his brother- 
in-law that he was inside of the Ku Klux Klan, and that the Klan in- 
tended to murder Mr. Wallace, a member of Congress from York County, 
South Carolina, his brother-in-law communicated the fact to the Attorney 
General, and the Attorney General sent for him. Does he appear here 
as a swift witness ? Is he here offeriny; to sell his information to the 



Govt iment ? Not at all. But his heart (and I imagine it would have 
incited a much harder heart than his,) relented when he learned that the 
Klan to which he belonged conteni[)lated a most horrible murder, and 
then he revaled the fact that has since become known to the Govern- 
ment. Why did the distinguished counsel on the other side assail him ? 
It was because his testimony is important. Could he not have conceded 
the flict that he had received compensation* Is there any evidence ex- 
cept what he gives upon the stand ? Had he lied in other respects, with 
the oath of God upon him, would he not have concealed this? Would he 
not have done so, had he been such as the distinguished counsel would 
have you believe him to be? But no, gentlemen, he tells you the truth, 
frankly and fu^ly. Further, every w^ord that he has said of importance 
is corroborated, not only by the constitution arid by daws of the Klan it- 
self, but by every witness who has testified in the case, so that, gentlemen, 
if you believe hin-i to be a liar in general, you must believe that, in this 
instance at least, he has told you the truth. There is no ground for say- 
ing that Mr. Gunn is not to be believed ; there is not a shadow of founda- 
tion for such an assertion. I do not like to allude to it, gentlemen, but 
it may be that there is a little information that came out in the testimony 
of Mr. Gunn particularly disagreeable to these gentleuieu. I don't al- 
lude to this to pftjudice your minds against them, but I can well under- 
stand how it grated upon their ears. It was the fact that the Klan were 
raising money to pay them for their services here. Gentlemen, I have 
not the eloquence or the strength of language to depict to you ray 
hatred, my disgust, my profound horror of the Ku Klux Klan and its 
deeds. I adopt the language of Mr. Johnson as he denounced it to you. 
No wonder that he felt annoyed at Mr. Gunn that the Ku Klux were col- 
lecting money from their Klan in Georgia to pay him for his services for 
defending the Ku Klux brothers. What does Mr. Gunp say about this 
order? You saw him upon the stand ; you saw how frankly and fully 
he testified. He says that the objects of this order are just what the 
constitution indicates them to be, and that its purposes are to be carried 
out by killing the white Radicals, and whipping the black ones. Gentle- 
men, all these are startling facts for Mr^i^unnto announce in view of the 
other testimony in the case? Have the Kians not, gentlemen, killed the 
white Radicals, whipped, scourged and broken black Radicals? Has Mr. 
Gunn told you anything that does not appear in this very case and 
throughout the testimony of all the witnesses? 

There is no question about it, gentlemen. I say, if Mr. Gunn never 
told the truth before, he has certainly told it now. He is inside the or- 
der. Why, the distinguished counsel assails him and says he is just as 
bad as the prisoner, and asks, why does not the District Attorney prose- 
cute him ? Why does he not stand with Robert Hayes Mitchell at the 



438 

Toar ? Why, gentlemen, you know— and no person know.=i better than 
Messrs. Johnson and Staubery — that the testimony of accomplices is con- 
stantly received in Court, and not only received, but is absolutely neces- 
sary to disclose the secrets of organized crime — such an organization as 
this. Why, what is it ? It is an organization bound together by a most 
terrible oath ; ever}'- member raising his right hand to heaven and invok- 
ing the vengeance of Almighiy God upon him if he reveals any secret of 
the order; and, not onlj^ that, but invoking the doom of the traitor, 
which is death ! death ! ! death ! ! ! How, gentlemen, are you ever to 
come at such an order as that ? Simply in this way — men, in the order, 
who have become acquainted with its crimes, and \yho know its purposes, 
have waked up to the terrible trutli that they are felons and murderers, 
and have stepped forth and said, we will be so no longer ; we will do 
what we can to break up and destroy this foul conspiracy, and make 
M'hat reparation we can to the world for the part we have taken in it. 
You have heard, gentlemen, all this testimony, and you are to judge of 
it and these witnesses in the light of repentant sinners, who are -willing 
to offer themselves as -witnesses for the benefit of society. We have used 
them, gentlemen, and we ask you to scan their testimony and give it its 
true value. 

Next comes Mr. Foster. He has been inside this orr^pr ; he has ridden 
on its raids ; he has scourged the back of the dark Republican, but he 
has repented it, and now he comes to tell the truth. What, gentlemen, 
does he say ? He says the purposes of this order were political, and that 
they were to be accomplished by intimidation — by whipping and scourg- 
ing the members of the Radical party; that, in pursuance of this pur- 
pose, he went on two raids. On the first raid, he says, we whipped five 
colored men. On the second, we whip])ed four. Is there any dovibt 
about this fact ? One of the sufferers, Dick Wilson, has been upon the 
stand. Foster says, twenty of us went on that night and whipped them, 
and almost whipped them to death. What does Dick Wilson say ? He 
says, " they did -whip me, they bared my back, and scourged me till I 
was almost dead." 

But floes Mr. Foster not agree with and sustain Mr. Gunn ? On the 
other side, does the counsel assail Mr. Foster? Not in a single word. 
Foster spen.ks like a man who has passed through a horrible experience, 
who has suffered in his own conscience, and determined to repair the in- 
jury he has done. 

Is there any doubt about this, gentlemen? Do the gentlemen on the 
other side question this testimony ? Here is the slayer, and there is the 
slain. Here is the man Avho did the deed, and there is the man who suf- 
fered. Is the testimony of accomplices to be received? Is what they 
say not true, not supported by most indubitable proofs ? John Caldwell 



439 

appears next on the stand. What does he say ? "I took that Ku Klux 
oath ; I was to be on the side of constitutional liberty, as bequeathed to 
us by our forefathers, and I was to oppose and reject the principles of the 
Radical party. I was a member of the Ku Klux Klau." Well, what 
did Mr. Caldwell do ? He says, " I rode on the raid that killed Jim 
Williams. We met at the Briar Patch; traversed the road; met Robert 
Hayes Mitchell at the Cross Roads, near Squire Wallace's, where he 
joined us in disguise, and rode with us on the raid. We hung Jim Wil- 
liams on a pine tree. It is true I did not go up and see the hanging, but 
after it was over, I asked Dr. Bratton what they had done with the 'nig- 
ger,' and where he was, and he said ' he is in hell, I exited.'' " Here you 
have the conspiracy in motion ; here you have the victim " hung on a 
pine tree." Is Mr. Caldwell to be believed ? Let us slip over to the 
other side of the bushes, to the house of Jim Williams. Hear Rose Wil- 
liams, the widow ; she says that " they came to my house that night, 
they took my husband, Jim Williams out, and the last I heard of him 
was a struggle as though he was choking. I followed them to the door, 
and tried to go and beg them not to hurt him, but they drove me back 
and told me to go to bed with the children; I looked through the crack 
and saw them retreating to the woods. I never saw Jim alive 
again. I saw him next morning dead, with a rope around his neck, 
hanging on a pine tree." Is Mr. Caldwell to be believed ? Look at the 
dead body of Jim Williams ! Ask the broken-hearted widow, who has 
tearfully told, in simple language, of the loss of all she held dear ! Ask 
the fatherless children ! 

Who is our next witness ? Elias Ramsay — halting in speech, but hon- 
est in manner and matter. He says : " I was at the meeting of the Klaa 
at Sharon Church, York County. I saw this defendant there in the 
meeting of the Ku Klux Klan. I rode on the raid with him. We met 
that dark cavalcade near Wallace's, and, together, went to hang Jim Wil- 
liams. We joined the party and went in together." What does he say 
they did ? He stayed with the horses until the party returned and the 
order was given to mount, and he heard somebody say: "We have hung 
Jim Williams." Next, gentlemen, we put upon the stand little Sammy 
Ferguson, the support of a widowed mother — a lad of sixteen years, 
taken and initiated that .very night. He takes the oath, goes to the 
Briar Patch, and rides on the raid to murder Jim Williams. 

These, gentlemen, are the acts of the Ku Klux Klan. Do they not 
sustain the declaration of Mr. Gunn ? Was it not true that they intended 
to kill and whip the Radicals, or those who voted the Radical ticket ? 
Neither you nor I, or the -world, will ever doubt it to the end of time. 
Gentlemen, you have listened to the testimony of those who were in tjie 
order, participated in its crimes, now listen to the testimony of those that 



440 

suffered. 1st. Amzi Rainey. He says, substantially, he was quietly 
sleeping with his wife at home; his house was surrounded and the doors 
broken in, and they shouted, "where is the damned nigger? " He fled to 
the loft, and when his wife said "he was gone," they commenced beating 
her over the head, telling her that she lied, and that they would kill her 
for lying. Shortly afterwards they discovered where he was, and he was 
brought down; and then the party who first assaulted his wife returned 
and beat her again. They then knocked him to the floor, shouting, as 
they did, to kill him. His little daughter rushed from another room, 
crying, " don't kill my papa," when these villains fired upon her, hitting 
her in the head. After riddling the house with bullets, they took Amzi 
Rainey hence into the open air, swearing that they would kill him ; and 
when^two or three hundred yards from the house, one of them says, "no, 
Ifet us stop ; let us talk to him before we kill him ;" and he turned to 
Rainey and says, " Are you a Radical?" and he says, " yes." " Will you 
raise your right hand and swear that you will never vote the Radical 
ticket any more? If so, I will save your life." Rainey replies, "I will 
do anything to save my life." Awd he says, " I then and there raised 
ray right hand to Heaven, and swore, against my principle, that I would 
never vote the Radical ticket any moreJ' Then the commander of this 
Klan says to me, "come this way," and he took me out of the crowd and 
said, "run," and he ran. And as he ran several stones were thrown at 
him. This is the way, gentlemen, in which this Ku Khix Klan proposes 
to stand by the Constitution in its original purity, and this is the manner 
in which they propose to op})ose and reject the principles of the Radical 
party. The constitution of the conspirators, and the conspiracy in mo- 
tion, are one and harmonious, from beginning to end. Next is Dick Wil- 
son. He says they came to my house and commanded me to make up a 
light. They then com})elled me to go into the open air, and said, " we 
xvill make a Democrat of you to-night; pull off your clothing, stretch out I 
And he stretched out and they beat him till they were tired, and they 
asked him, "will you hereafter vote the Democratic ticket ? " And he said, 
"I will." That, again, is the way constitutional liberty is maintained by 
this organization. That is the way they oppose the principles of the 
Radical party. Is there any doubt about this, gentlemen ? The man 
who sits there helped to do it, and those who did it, and those who suf- 
fered, all concur. Next comes Gadsden Steele. He is of the colored race 
he says, " they came to my house ; they knocked at my door ; a dozen of 
them seized me; their hands were all over me; a musket was before me, 
and a gun was behind me, and a pistol punclied my head, broke the 
skin and caused the blood to flow." They first asked : " Have you a gun?" 
I^old them no. They then, turning to the old white man with whom he 
lived, say : " What sort of a boy is this ?" The reply is : " He is a good 



441 

sort of ahoy.'" They then ask: "What ticket did he vote f" He says : 
" I must tell the truth ; he voted the Radical ticket.^' They then shout : 
" God damn him, we will kill him for that !" Here is the purpose of 
the Ku Klux Klan ; and this is the way they propose to defend consti- 
tutional liberty in its purity. They then take him up to No. 6 of the 
Klan. No. 6 makes him a very low bow, and with his horns hooks him 
in the bi'east, and asks : " Where is Jim Williams ?" He replies that he 
does not know exactly where Jim Williams lives. The poor man is 
frightened almost to death by No. 6. He is then ordered to get on be- 
hind and go where Williams lives. He mounts the mule, and they start, 
but the mule is not able to carry both, when this brother Ku Klux says: 
" This God damned negro is too heavy." No. 6 answers : " Put him 
down," and he is put down. Then the Ku Klux says to him: " Don't 
you vote the Radical ticket any more. We are going to hill Jim Wil- 
liams, and all you damned niggers loho vote that ticket." Does anybody 
dispute this testimony? Do you doubt Gadsden Steele? Not a word to 
contradict him — not a suggestion from the distinguished counsel on the 
other side? What is the object of their marching in darkness ? It has 
been said to you that what was said by any of the conspirators was the 
language of the defendant here. The language of his associates was his 
language. Can there be any doubt as to ivhy they proposed to kill Jim 
Williams? 

Who is the next witness ? Hiram Littlejohn. He is a citizen of color. 
What does he say? They came to my house just before day. They 
were on their way from Jim Williams', going towards Yorkville. They 
asked me for my gun. I told them that I had none but a double-barrel 
shot gun. They took that. Then they asked me what ticket did I vote ? 
I told them I voted the Radical ticket. " Don't you vote it any more, do 
you hear ? We killed Jim Williams to-night, and we intend to rule this 
country or die." Here, gentlemen, you have the declarations of the Klan 
while executing its mission on their way to kill Jim Williams, and on 
their way /ro??i the scene of his execution! Is there, I ask, now any 
doubt about their purpose? Out of their own mouths, gentlemen, they 
are convicted. But, gentlemen, there is one piece of testimony which, 
to my mind, is equally significant with the direct testimony of these two 
men. You will remember that this band, after they hung Jim Williams 
on the pine tree, called at the house of John Bratton, and, wdien they 
had called him out, and he had come to the door, they said to him : 
" What do you mean by having these guns upon your place ?" He says: 
" I cannot help it. I ought not to be held responsible for what Governor 
Scott has done." They reply : " We will hold you responsible hereafter." 
He then says : " I am not a Radical. I did not give them the guns." 
What made him say that ? He knew the purposes of the order, and 



442 

that their purposes were not only to take the guns, but to punish Radi- 
cals. Hence he said " I have not given them the guns, and I am not a 
RadicaL" Here, gentlemen, we have, unquestionably, an unwilling wit- 
ness, declaring what he knew perfectly well were the purposes of the Ku 
Klux Klan, and of this body of raiders and murderers of Jim Williams. 

Behold, gentlemen, the dark deeds of the Ku Klux Klan ! Does not 
the civilization of the age start back in horror and stand aghast at the " 
sight ! Will not the world shudder as it reads the testimony of this trial, 
and will it not be said, wherever it is read, that the dark ages have come 
again, and the crimes of savages even, upon our Western frontier, present 
no parallel to these? 

I have presented to you, as briefly as I could, the evidence upon which 
Ave ask a verdict of guilty at your hands. Now, what is the, defense set 
up by the learned counsel for the prisoner ? Why, gentlemen of the jury, 
the most distinguished counsel of the land — both of them ex-Attorney 
Generals of the United States — who have been at the bar for nearly half a 
century, and have justly adorned it — the fame of one of them, at least, has 
become the pride of the American bar. What is the defense which these 
distinguished men make to this charge against the prisoner? Do they 
deny, by testimony, the constitution and by-laws of the Ku Klux Klan ? 
Do they attempt to deny that paper is the basis of the organization to 
which their client belongs ? Not at all. They don't assail that constitu- 
tion ; they don't deny the interpretation put upon it ; they do not deny 
its language ; don't attempt to excuse its operations. They don't deny 
the evidence of Mr. Guuthorpe or Foster, or Rainey or Kirkpatrick or 
Ferguson. Do they attempt to impeach the testimony of Dick Wilson, 
Gadsden Steele, Hyram Littlejohn? Do they attempt to deny the crimes 
committed by this terrible klan, committed by the associates of their 
client ? Not at all ; not one word of testimony or argument, nor one 
word of excuse. What, then, is the defense ? What do they say 't They 
say there was a state of terror and fear in York County, on account of 
the three militia comjoanies — on account of the burnings — on account of 
the Union League — and on account of the threats of " Jim Williams." 
But, gentlemen, does this explanation excuse the Ku Klux Klan ? Ad- 
mitting, for the sake of argument — which we deny — that all this is true, do 
they show, or attempt to show, one tittle of evidence that this organization 
was the result or consequence of that fear f Is there anybody here that 
says that but the distinguished counsel, and they only by way of argument ? 
Do they connect their client with tl)at fear in any way ? Do they show 
that it was an organization for protectio)i — for protection against threatened 
danger? do iheij pretend that ? Why, gentlemen, read the constitution and 
by-laws of the Klan, and see if it was an organization got up to defend their 
wives and families against danger. There is no such thing in it. The 



443 

• 

leading features of that instrument I have discussed. They are political, 
and for political ends; thoy are for the purpose of defending constitu- 
tional liberty, as bequeathed to us by our forefathers, and to reject the Y>^'m- 
c\p\es of the Badical party. Is that protection F Do they use such lan- 
guage and mean protection f Does it appear from the evidence that there 
was a fear of Jim Williams, or fear of the Union League, or fires which 
occurred at midnight in York County, before or after the organization of 
the Ku Klux Klan ? But admitting all they claim in that regard, and 
the organization of the Ku Klux Klan is still unexplained. It is still 
the terrible dark and devilish conspiracy. But what they claim, gentle- 
men, we will show, by the testimony, is not true. First, as to the mili- 
tia companies ; when were they organized ? In 1870. "When was the 
Ku Klux Klan in York County organized ? Ln 1868, two years before. 
Can anybody say, is there any gentleman so learned or so eloquent as to 
endeavor to persuade you to believe that the militia companies organized 
in 1870 created the Ku Klux Klan of 1868? Why, gentlemen, it is 
too absurd to talk about. They could not have been the cause, since they 
were organized after the Ku Klux Klan was organized. Now, as to the 
Union League. The gentlemen on the other side have not attempted to 
assail the character of the Union League in argument or in testimony. 
That it was a proper organization is not denied. That its objects were 
carried on in a lawful manner there is no denial. That it was a bad or- 
ganization in itself, that its principles were bad, nobody claims. No one 
claims that it did a single act, during its whole history, of which anybody 
could justly complain. Are we^to be told, are we to be asked to believe, 
that the Union League, a perfectly harmless society, was the cause of the 
organization of the Ku Klux Klan ? Why, if it was, tell us what the 
Union League has done. Tell us hoiv it has organized the Ku Klux 
Klan. Gentlemen, if they could have impeached the character of the 
Union League, would they not have done it ? Are the distinguished 
counsel on the other side ignorant of what they could do, or ought to do, 
if the Klan had its birth in such a cause ? Certainly they are not ignorant ; 
and the counsel who last spoke said, " I have not a word to say against 
the Union League ;" and this is the end of that argument. And now, as 
to /ire-s in York Count >/, said to be incendiary. That took place two years 
after the organization of the Ku Klux Klan, and months after they had 
been murderitog and whipping the colored citizens of York County. Will 
they attempt to say that the Ku Klux Klan had its birth in these fires 
in York County ? Why, gentlemen, the saijie answer can be given to 
this as was given to the other — the organization of the militia companies. 
The organization of the Klan took place two years prior to any burning, 
and the raiding of the Klxn was two or three months before the burnings 
of which they complain in 1871. 



444 

• 

So, gentlemen, this defense, this attempt at palliation, or this attempt at 
explanation, this attempted excuse for the deeds of the Ku Klux Klan, 
is blown to atoms. It has nothing more in it than the breath of the dis- 
tinguished counsel who suggested it. But what' is the testimony on that 
point ? Mr. Lowery, a witness called on the part of the defense, tells us, 
the fires took place long after the raiding of the Ku Klux Klan. The 
fires took place in January and February. Poor Tom Roundtree, col- 
ored, was killed by the Klan on the second night in December previous 
to that, and all that part of the country was then being raided, night 
after night, by the Klan. The fires took place a month or two after. Is 
this, then, any defense of the Klan in York County? Can the distin- 
guished counsel say to the world they organized for self protection (?) 
against the fires that lighted up the horizon in York County, in January 
and February, when the fact that these murders and raids had already 
driven the colored people to their graves, or to the thickets for conceal- 
ment, at night, long before they occui-rec ? Gentlemen, I feel that I would 
be wasting your time if I detained you to show you that the excuse 
given here by the counsel on the other side, and given up in York County 
itself, had no foundation in truth or in fact. Gentlemen, there is not a 
witness, either for the prosecution or the defense, that locates the body of 
these fires till months after these outrages had been perpetrated. The 
only burning before, to which a suspicion has attached, has been proven 
to have been the work of white men, and not of the colored men. The 
man whose building w'as burned, Dr. Allison, says he was satisfied, from 
the tracks left there by the incendiaries, that it was a white man that did 
it, and not a colored one ; so that not a suspicion, much less a fact, of 
burnings is fiistened upon any colored man in York County, or upon 
anybody, till montbis after these raidings and murders were committed. 

But, gentlemen, we come now" to their last defense. They say that the 
raid upon, and tlie murder of, Jim Williams are to be attributed to 
his own threats to " kill from the cradle to the grave." Gentlemen, let 
us examine this last stronghold. It is said Jim Williams made threats. 
Jim Williams is dead. His voice is hushed forever, and, though evil 
men assail and revile his memory, he will not reply again. We must 
depend, for his vindication, on his conduct in life, and in the testimony 
of those few faithful friends who stood by and appreciated him in his 
hour of peril and of death. I say to you, gentlemen, anA I appeal to 
you on the testimony only, there is little to censure in the language of 
Jim Williams, when you Remember when aiid where he said it, and when 
you understand it as he meant it. I have once felt hurt upon this trial. 
It was when Mr. Stanbery said, in your hearing, " Had I lived in York 
County I would have joined the first squad, and gone to arrest Jim W^il- 
liams." Gentlemen, in the light of the testimony, which has not been 



445 

coutraclicted, how could he say that? I pity the head, if uot the heart, of 
this gentleman. Gentlemen, that was as gratuitous a remark as one 
otlier remark made by that distinguished counsel, which was, " I am not 
mixed up with your local quarrels in South Carolina. I am not mixed 
with your polities. I came from a distance; but I tell you, colored men 
of South Carolina, if you attempt to make a step in advance of the white 
race, your doom is sealed !" Why did this distinguished counsel make 
such a remark ? Is there a pretense in this case — is there a pretense 
in South Carolina — that the colored race have attempted to do this? I 
tell you no, gentlemen, the colored race of South Carolina is struggling 
to elevate itself — is struggling to exercise the rights of American citi- 
zens ; the people of that race are struggling to protect themselves and 
become what the Constitution says they shall be — clothed in all the 
rights of American citizens. Gentlemen, I do not here encourage, and I 
have never encouraged colored men to aspire to, or claim, anything more 
than is conceded to -white men ; but to all political rights and rights of 
propeity they are fully entitled. The laws of this State are equal 
and just. No political party in South Carolina attempts to impeach the 
Constitution which the colored people of this State have made. But, 
gentlemen, that distinguished advocate conies from a State which has not 
advanced as far as South Carolina. He comes from a State that does 
not allow a colored man to sit upon a jury, or testify upon the stand ; 
hence, we may well excuse him for some little aberation of mind. His is 
the State of Kentucky. But all such remarks have a purpose. What that 
jDurpose is, I leaye you and the country to judge. What 1 do say to you 
is, that, whether wise or unwise, whether just or unjust, the colored man 
in South Carolina is raised by the fundamental law of this State, and that 
law is supported by the Constitution of the United States, and by the 
conscience of the great American people, that the colored man shall be a 
citizen, and he shall be protected in all the rights of an American free- 
man. 

Now, as to the threats of Jim Williams. Who says he made threats? 
Mr. White says — he is a member of the Legislature from York County — 
I have known Jim Williams for eighteen years, and I have known him 
to be a peaceable, quiet and unoffending citizen, and I never heard him 
make a threat. I never heard of his making a threat until after they 
had hung him. He was incapable of " killing from t e cradle up," 
unless he had a terrible provocation.' What does Mr. O'Connell, of the 
House of Representatives, who was driven from York County by the Ku 
Klux Klan, and did not dare go back there until our distinguished friend 
here, an efficient officer of the United States army. Major Merrill, made 
it possil^le to live there, say ? He says : " I know the reputation of Jim 
Williams, and I know none who stand higher. I never heard of his 



446 

making threats, (and I knew him well,) until after he was dead. Andy 
Timms says: I was the clerk of his company, and was his bosom friend. 
I helped organize the company. I was with him day and night, and I 
never heard him make a threat — I never heard of his having made a 
threat until after they had hung him. Now, gentlemen, let us examine 
the testimony of their own witnesses. Mr. Bratton, a witness called for 
the defense, says: " I heard him make threats," and you will remember 
that I asked him in what connection he made threats, and he replied, 
that "it was in reference to the raids of the Ku Klux Klan — that if the 
Ku Klux JK^lan came to this neighborhood, and raided upon the people 
here, as they had done in other portions of the County, he said, I will 
take my company, and I will fight them, and if worst comes to worst, 
I will kill from the cradle up!" Gentlemen, that is the light in 
which he made those threats. He says, substantially : " If I. am to be 
murdered, as Tom Roundtree was — if the colored people — my fellow- 
citizens — are to be killed and whipped by the Ku Klux Klan, I propose 
to fight myself and carry on war." Another of the defendant's wit- 
nesses, in the same connection, testified that when he uttered those threats 
he said this : "I think the best way to do in this fuss is that the white 
and colored people, if they must fight, shall go to the old field and fight 
it out like men." This, then, gentlemen, was what Jim Williams 
meant. Does anybody blame him for it ? Does the honest man 
live who can stand up and say that Jim Williams, in the light of 
the murders about him of his race, was not justified in making 
threats? or, at least, if not justified, excusable? I do not, gentle- 
men, defend threats of violence ; we have had too much of it 
in this country, and it is too common in our midst. The people 
ought to learn that in a tribunal of justice are they to seek redress 
for all their woes. But, gentlemen, the Courts, the tribunals of York 
County, were deaf, paralyzed, in the presence of this all-pervading organ- 
ization of the Ku Klux Klan, and Jim AVilliams felt, as he had a right 
to feel, that his own life, and the life of his fellow-citizens of African de- 
scent, depended upon their own strong right arms. It was that right 
arm that he invoked on these occasions when he made these threats, if 
threats they can be called. Is it possible for you to believe, from all the 
testimony in the case, that he referred to anything else than the means 
to save his own life? The Ku Klux Klan was raiding, whipping and 
murdering his race, and the only wonder to rae is-:— and I say it emphati- 
cally, to the people of York County — the only wonder is, that your 
houses are not all burned ! The only wonder is, that many of you were 
not assassinated at midnight ! The only wonder is, that many of you 
now still live ! I desire to call attention to the language of the distin- 
guished counsel on the other side, where he says : " Self-defense, self- 



447 

protection is written upon the heart of the infant when born into the 
world." I can only say, gentlemen, that, in my judgment, it was not 
written very legibly upon the hearts of the colored people of York 
County. If it had been, the worst forms of civil war would long ago 
have been inaugurated there, and the white people would have reason to 
say the colored people intend to kill from the cradle to the grave! But, 
gentlemen, the member from that County in the House of Repiesenta- 
tives of this State, tells us that that /ear was all a pretence ; that it had 
no real foundation. And now, gentlemen, let us see if he is sustained by 
the testimony. Gentlemen, the history of the war, and the conduct of 
the slaves during the war, are not forgotten. Did the white people of 
South Carolina fear the colored race during that long and terrible war? 
That war, at least during half of its continuance, was waged with the 
express understanding, on the part of the North, that, if successful, the 
slaves were to be set free. But, notwithstanding this temptation to disloyalty, 
did the Confederate soldier fear to leave his wife and family in the hands of 
his slaves at home ? Did he fear that they would rise and kill from the cra- 
dle to the grave? Did he not go with the armies of the Confederacy far 
to the front to fight the army of the Union, and leave his wife and chil- 
dren, helpless ones, in the hands of his slaves ? Since the close of the 
war, have they had occasion to fear the risin^i: of the colored people ? 
When the bonds of slavery were broken, and when the slave was told 
that he was free, did he seek to revenge himself upon the white race that 
had bound him for two hundred ^years in bondage? Is there any in- 
stance, in the whole South, where we have seen anything like revenge in 
the conduct of the colored race? I tell you, gentlemen, no ! The testi- 
mony of all the white people of the South can be invoked, with 
safety, upon that point. No public speakers, even in the Demo- 
cratic ranks, representing, if you please, the Ku Klux Klan, dare, 
in public, charge that the colored people of South Carolina — 
once slaves, now free — have attempted to retaliate uj)on their old 
masters. No, gentlemen, they have been a patient, long suffering, quiet 
and peaceable race. They have only sought to take and enjoy the bless- 
ings of freedom secured to them under the Constitution. Had they com- 
mitted any outrages, or made threats before 1868, before the organization 
of this Kvi Klux Klan? Mr. Gunthorpe says I didn't see any occasion to 
fear. I didn't know why the Klan was organized in 1868, but I thought 
if there was any danger I would join it, and have the benefit of it ; but, 
when I came inside the Klan, I found it was not for self-protection at all. 
There was no such purpose in it. What was it ? It was to go and elbow 
voters from the polls. Still later, has there been anything in the con- 
duct of the colored people of York County to cause this state of terror 
and alarm ? There is not one word of proof to show it, except that they 



,448 ' ' 

had reason to expect retaliation for wrongs perpetrated upon the colored 
race ! Gentlemen of the jury, we can only say thatthe testimony of some 
of the witnesses for the defense cannot be true. The white people of 
York County would not so testify if upon the stand. We can only say of 
the testimony of three or four witnesses that have been put upon the 
stand for the defense, that the history of the colored race during and 
since the war contradicts them. The organization of the three militia 
coinpanies in York County is not enough to justify the fears and the 
alarms of vs'hich they testify. What does Mr. Alburtus Hope says: " I 
was in the Klan, which we organized for protection — to protect my house 
and family, and the colored people, upon ray place, against the white 
people raiding round " — not the colored people that were raiding round ! 
Mr. Hope is the best specimen of the Ku Klux that we have met in the 
history of this trial. He says he felt it necessary to organize a Klan to 
protect himself and his laborers against the white people that were raid- 
ing around. Gentlenyen, here in the presence of all this testimony, in the 
light of history, we say to you, that this terror is all a pretense ; the fear 
of the colored people was not justified, and it did not, in fact, exist. But, 
gentlemen, I hasten to close this argument, I do not care to say a word 
upon the technical points raised against this indictment and the jjroof — 
the Court will tell you that this conspiracy to deprive the colored citizens 
of York County of the right and privilege of voting, the admonition that 
they gave to every colored man as they whipped him — never vote the Rad- 
ical ticket again — includes the election of 1872. I will not waste any 
words upon that 2:)oint, because, gentlemen, common sense, which I know 
you possess, and the law, that I know you will receive from the Court, 
furnish a complete answer. The precedent, if the Court please, which 
the distinguished counsel cited, does not apply to this case : " Proof of a 
general conspiracy to cheat, as is said, does not prove a conspiracy to 
cheat a particular person." That is not this case ; that is not this indict- 
ment. This indictment- charges a general conspiracy to deprive divers 
colored people of the right to vote in the election to take place in 1872, 
and the proof is that a conspiracy existed to prevent voting at all in the 
future. Does not that cover the election of 1872? 

As to the second count in the indictment, I need say but a word. You 
have heard of that dark cavalcade of disguised men on their way to kill 
Jim Williams. They said, we are going for his arms, and we are going 
to kill him, and every damned nigger ivho voted the Radical ticket] 

Gentlemen of the jury, this is no common cause. Your verdict will 
mark an era in the history of the administration of justice in South Caro- 
lina. The smoke of battle and the sound of arms of the great rebellion 
have just passed away. With the close of that great tragedy humanity 
has swept onward. The arm of the nation has been stretched out to pro- 



449 

tect the as yet ignorant but enfranchised freedraen. The bonds of the 
slave have been broken, and the voice of the American peoj)Ie is (and 
the people of South Carolina, and the people of- the South, nnist hear it, 
listen, and be governed by it), that the rights of the newly enfranchised 
citizens shall be protected. We have discovered, gentlemen, a fearful con- 
spiracy against these rights in an armed, equipped organization, com- 
posed, alas, gentlemen, of many soldiers In the late war, who promised to 
lay down their arms, retire to their homes, and behave like good citizens. 
This organization is found bearing arms, marching in squadrons at night, 
and for what? To defeat the very principles achieved in that contest by 
the Government of the United States. I say to them — I say to every 
individual in this armed organization — in the name of God, disband / 
Go to your homes, meet no more ; because the uplifted arm of this nation, 
otherwise, will crush you, will grind you to powder ! The late war left 
you poor, in poverty and distress ; if the arm of the American people has 
again to be raised to .put down this organization, I fear it will make your 
homes desolate and your fields a wilderness. One thing, gentlemen, is 
certain ; I hear it in the voice of the President, in the language of the new 
Attorney General, and I heard it in the language of the one about re- 
tiring, and it throbs in the heart of the American people; it is that this 
organization, to defeat the rights of our colored fellow-citizens, 7nust and 
shall be put down. Gentlemen, I am here, as the representative of the 
Government, for that purpose. I tell you, and I tell the people of South 
Carolina, that if this thing is not put down, woe, woe, woe unto them. 
Gentlemen, you have heard the case, you have listened patiently to the 
evidence, and I now look, with confidence, for a verdict at your hands. 

CHAEGE OF THE COURT. 

Gentlemen of the Jury : 

You have listened with patience to the recital of the evidence in this 
cause, and without commenting upon that, the Court proposes to state to 
you the law applicable to the evidence, which must guide you in making 
up your verdict. The indictment, gentlemen, is for a conspiracy, which 
is an agreement by two or more persons to do an unlawful thing, or to do 
a lawful thing by unlawful means. The thing to be punished is the un- 
lawful conspiracy, and not the particular acts done in pursuance of it. 
The conspiracy is a crime, if nothing be done in pursuance of it. 

The indictment, gentlemen, contains two counts. The first charges 
the defendant and others, jointly indicted with him, with having 
conspired to violate the first Section of the Act of May 31, 1870, by un- 
lawfully hindering, preventing and restraining a certain class of persons 
therein named from the future exercise of the right to vote at an election 

2y 



450 

to take place in October, 1872, on account of" their race, color, or jjre- 
vious condition of servitude. 

And the second count charges that he, with others, did conspire to in- 
jure, because of his color, James Williams, because he had exercised the 
right to vote previously. It is to these counts that you are to refer the 
evidence and to apply the law which the counts give you. If you find 
from the evidence that there was no such conspiracy as that de- 
scribed in the first count, or if there was a conspiracy, the object of it 
and its purpose were different from that set forth in the count, ajid that 
the object and purpose set forth in the count was not one of its purposes 
and objects, then the j)arty charged is not guilty under the first count, 
though he may have been engaged in the conspiracy. But it is not ne- 
cessary, if the jury find there was a conspiracy, and that the party was 
engaged in it, that they should find its purpose to have been single. If 
they find that one of its purjioses was that set forth in the first count, to 
prevent citizens from the exercise of the right to vote because of their 
color, it is sufficient. An association, having such a purpose, is an un- 
lawful conspiracy, and a party engaged in it may be punished under the 
first count. 

Each member of such an association is a conspirator, and is responsible, 
personally, for every act of the conspiracy and for the acts of each mem- 
ber thereof, done by common consent, in furtherance of its illegal pui*- 
poses, and also for such acts done in furtherance of the conspiracy not 
consented to beforehand, if assented to subsequently to their perpetra- 
tion, and that whether the party charged was himself actually present or 
not when such act was done. And if the jury believe, from the evidence, 
that the various Klans spoken of by the witnesses were but parts of one 
general conspiracy, this rule applies not only t© the members of the same 
Klan, but to the acts and conduct of the members of the different Klans 
done in furtherance of the conspiracy. And it makes no difference in 
guilt if you find from the evidence that the motive of a party who joined 
the conspiracy was not illegal when he did join it, if you also find that, 
after he became a member, he was aware of the fact, or had reason to 
know, that the true object of the conspiracy was to prevent or hinder the 
free exercise of the elective franchise by intimidation or violence, as afore- 
said, on account of color, and that he still remained a member and par- 
'ticipated in its meetings, and that, though you may also find he never 
himself actually used the force, intimidation or violence, and was not 
present when it was used. 

And now, if the jury find, from the evidence, that the party charged 
did so conspire to prevent the citizens described from exercising their 
right to vote, on account of their color, at a future election, specified to 
be the election to take place on the third Wednesday of October, 1872, 



451 

then the party charged is guilty under the first count of tlie indictuieut. 

And if the jury find, from the evidence, that they did so conspire,, and 
for the same reason, to injure and oppress, on account of his color, one 
Jim Rainey, alias Jim Williams, because he had antecedently, on the 
third Wednesday of October, 1870, exercised his right to vote, then he 
is guilty on the second count. 

But if the jury find, from the evidence, that no such conspiracy ex- 
isted, or that, if it existed, the intimidation or injury of voters, because 
of their exercise of the suffrage, or to prevent its exercise, formed no 
part of its purpose, or that, if that were its purpose, the defendant was 
not engaged in it, then the defendant is not guilty. 

But the jury is not bound to believe the sole purpose of the conspiracy 
to be that set out in the first count ; if they find it to be one of the pur- 
poses, it is sufficient. Nor, if they find that the beatings and intiniida- 
tiou spoken of by the witnesses took place or existed, are the jury bound 
to believe that the reasons given at the time by the conspirators, if they 
find reasons were given, were the true reasons for such conduct ; but the 
jury may determine, from all the evidence in the cause, wliat the true 
reasons were for such violence. 

If the jury find, from the evidence, as we said before, that the conspi- 
racy set forth in the first and second counts in the indictment existed, 
and the defendant engaged in it there, he is guilty on both counts. If 
there existed no such conspiracy at the time set out in the indictment, or, 
if existing, it had another object which did not include that set out in 
the indictment; or, if existing, and having the illegal purpose, the de- 
fendant took no part in it, then he is not guilty. 

The jury are at liberty to find one of three verdicts: They may find 
the party guilty generally, or not guilty generally, or they may find him 
guilty on one count, and not guilty on the other. 

Take the case. 

THE VERDICT. 

The jury retired, and, after an absence of thirty-eight minutes, re- 
turned a verdict of " Guilty of the general conspiracy." 

Mr. Stanbery wished the verdict to be recorded as rendered, but the 
Court said " No," very emphatically, and explained to the jury that they 
must find the prisoner guilty or not guilty on one or both of the counts. 

The jury again retired, and, on their return, the Court stated that the 
first charge had probably misled them. He then explained, more fully 
the purport of the charge. 

Again the jury retix'ed, and, on their return, rendered the verdict: 
" Guilty on the second count ; uot guilty on the first." 



452 

MOTION FOR A NEW TRIAL. 

Mr. Stanbery entered a motion for a new trial, and the Court ad- 
journed. 



Columbia, December 27, 1<'^71. 

ARGUMENT BY MR. STANBERY. 

As to the verdict of guilty under that count, we claim that it is con- 
trary to the law and the evidence. 

The allegation under that count is as follows : that the conspiracy was 
to oppress, threaten and intimidate Jim Williams, alias Jim Rainey, a 
colored citizen of the United States of African descent, above twenty- 
one years of age, qualified by law to vote; and that he, the said Jim 
Williams, did exercise the right and privilege of voting at an election 
by the people in said County, District and State, held on the 3d Wednes- 
day of October, 1870. 

Under this charge the jury found this man guilty, and found him not 
guilty of the conspiracy charged in the first count. No such offense as 
that was specified in the Act of 1S70. Various provisions are there with 
regard to elections, but none relate to conspiracy against interfering with 
the voter at an election for a Representative to Congress. 

By looking at the Act of 1870, your Honors will find that the 19th 
Section, the 20th, 21st, also the 22nd Section, all relate to elections where 
Representatives to the lower House are to be elected. 

They punish offenses committed at those elections, or in reference to 
those elections. A great variety of them are punished under those Sec- 
tions, but none of them punish a conspiracy in reference to elections. 

It seems to have been a thing omitted ; they have included all the acts 
of hindering a man from voting, or punishing him for having voted 
wrongfully at such an election. All these things are provided for, but the 
conspiracy to do these things, so far as the election of a member of Con- 
gress is concerned, is not i)rovided for by the Act of 1870. 

The first time that such an olfense is defined by Statute is in the 2nd 
Section of the Act of 1871, and is in these words: " If two or more per- 
sons, &c., shall combine together, &c., by force, intimidation or threat, 
to prevent any citizen of the United States who is lawfully entitled to 
vote, &c., for or in favor of any lawfully qualified person, or as a mem- 
ber of Congress of the United States, or to injure any such citizen on 
account of his support or advocacy," &c. 



, 453 

In this whole clause of this Act of April, 1871, injuring a person on 
account of having given a support or voting for a candidate of the lower 
House of Congress, is specifically punished, that is, the conspiracy to do 
that thing is specifically punished for the first time. 

If your Honors look at this indictment you will see that it is framed 
in the very language of the Act of 1871, and that is what saved it from 
being quashed. And, looking at the caption where they notify under 
which of these Acts the counts are framed, you find that reference is 
made at the top to the 2nd Section of the Act of 1871. Every one that 
contains this third count refers to the 2nd Section of 1871, as the law 
which contains the ofiense stated in those various counts. 

Mr. Corbin. I know my friend on the other side does not mean to be 
mistaken ; but the only counts that refer to the Act of 1871 is the last, 
which contains the eleventh count. All the other counts are notified at 
the top. 

Mr. Stanbery. But when you come to the interference, it is under the 
Act of 1871. The law under which this man is to be punished, if pun- 
ished at all, is the law passed in 1871. 

What makes him amenable to any law like that? 

What Act has he done since that law was enacted under which he is 
to be punished ? 

.The evidence is perfectly conclusive that if there was any conspiracy 
in preventing Williams from voting for a candidate for Congress in the 
fall of 1870, or for having given his support to hira~if there was con- 
spiracy in preventing him voting for Wallace, or doing anything towards 
hindering him from voting, or punishing him for having so voted, although 
every Act had ceased and there was no law in operation on May 20th, 
1871, when this last Act was passed to punish it. 

Now, there. can be no mistake about that. The evidence is that Jim 
Williams was killed and hung on the night of the 6th of March, 1871, 
whereas this law, under which he was indicted, was not passed until the 
following month of May. 

From the 6th of March to the 20th May, all that time had elapsed 
after the final act was done in consummation of the conspiracy before 
the passage of this Act. 

Now, the answer given to this is that a conspiracy is a continuing 
thing. Let us admit that it does continue ; but how long? If it is a 
conspiracy to-day, if it is a certain act against a person, as, for instance, 
to take the life of a person. 

Mr. Corbin. Is not this the second Section of the Act of '71, which 
specifically punishes a person for interfering with voting for a member? 
The Act of '71 relates t'o a general conspiracy. 

Mr. Stanbery. Congress took it for granted that they had not provided 



454 ; 

a law for it, and they went on to provide for it. They took it for granted 
that they had provided for it in the Act of 1870. They had provided 
for a dilfurent offense from that which is provided for by the violation of 
this 6th Section. The punishment in that Section cannot exceed six 
years, whereas, under the other, it cannot exceed ten years. It is a dif- 
ferent punishment, and a lighter one than that given in the sixth Section. 
It shows, in every point of view, that it had not been provided for, and, 
to make up that defect, Congress has here made special provision, and 
the gentleman has followed it in his indictment. The gentleman says, 
we ought to have taken advantage of this, by motion of arrest. That 
could not be done. The day is not material, and we said so at the time, 
and reserved to ourselves the right to make it to the Court subsequently ; 
under the agreement and knowledge that the day in which it was called 
was prior to the passage of this Act; and we reserved the matter to make 
it, as I now make it, upon motion for a new trial. The day has been 
proved to be the 6th of March, and shows that the whole thing of that 
conspiracy ended six weeks before this law was passed, which bears date 
the 20th April. 

Mr. Corbin. There is one point to which I desire to call attention: it 
is the seventh Section of the Act of Cungrees of April, 1871, which is, 
that nothing herein contained shall be construed to supersede, to repeal 
any former Act or law, except so far as the same may be repugnant 
thereto ; and any offenses heretofore committed, against the tenor of any 
former Act, shall be prosecuted, continued and completed, the same as if 
this Act had not been passed, except so far as this Act shall invalidate 
such proceedings. Any offense committed prior to this Act, could still 
be prosecuted under this Act, unless this Act is expressly repugnant 
thereto. Now, instead of this, it expressly goes to sustain that Act. 
Unquestionably, as it is claimed by this distinguished counsel, it is 
nothing more nor less than the punishment of similar offenses, but-puts 
a less penalty upon it. That is not repugnancy. 

Mr. Stanbery. I do not say there is a repeal of the xlct of '70 by the 
Act of '71. My point was that this offense was never provided for, until 
the Act of '71. We don't want any repeal of the Act of 1870, or of 
anything that is provided for by the Act of 1870, but this is first made 
an offense by the Act of 1871. Congress saw that they had provided for 
conspiracy, and for other things, but not for elections, and attached the 
crime of conspiracy against interfering with the election of members of 
Congress, and this Section of the Act of 1871 provided the exact measure 
of punishment which they thought ought to be inflicted. But they did 
not provide for it in the Act of '70. It does not appear there ; and 
because it is repugnant to the Act of 1870 to punish a man, under this 
Act, for interfering with the election of members of Congress, with ten 



455 

years' imprisonment, while, under the Act of '71, you can only punish 
him for six years. Is there no repugnancy thei'e ? Is it not perfectly 
clear that they had not their minds upon the same subject-matter? They 
found that they had not yet provided for particular offenses, and they 
provided for them, for the first time, by the Act of '71. 

I may be mistaken, but it seems to me so clear that I see no ground 
to argue it further. 

It might be argued that, had there been no .provision made under the 
Act of '71 to prevent interference with the right of voting for members 
of Congress, it might have been argued, with some plausibility, that the 
elections of members of Congress might have fallen within it; but that 
would strain a penal statute a great way. But, in the Act of '71, ac- 
cording to Congressional interpretation, they f )und it necessary to make 
provision for the punishment of offi-nses that it was not intended to pro- 
vide for by the Act of 1870. I rely upon the last Act of Congress to 
show the interpretation of the former. 

There is, therefore, a verdict in this case. -against the evidence and 
against the law, unless your Honors are disposed to say that this law 
shall have an ex post facto interpretation ; and although there is no law 
in force for punishing them in this way for voting for the election of 
members of Congress, but, inasmuch as the thing was done, so far as pun- 
ishment was concerned, there was no law to punish it, and it was an in- 
nocent act, not punishable by penal statute. Of course your Honors will 
not do that — that is, to give this law an ex post facto interpretation, to 
make that a crime which, when, committed, was not a crime. It seems to 
me, therefore, perfectly clear that, as this indictment is found expressly 
punishing that act, it is impossible that this verdict, w^iich finds this man 
guilty, can stand. 

ARGUMENT OF MR. COEBIN. 

I really think my distinguished friend on the other side must be mis- 
taken. This count in the indictment the Court expressly sustained on 
the motion to quash, and stated that if the count had been drawn with 
the particularity of the first count, that it would have been good. It was 
so stated, and has been ever since sustained. Now, instead of being 
drawn under the Act that the counsel on the other side says it was, it 
was not drawn at all under that Act, and is not in the language of that 
Act. That Act expressly provides for a case where a person shall vote 
for a member of Congress. Now, this indictment does not charge that 
he voted for a member of Congress. That is not in the original count of 
the indictment ; not at all ; but it is a general statement, and was drawn, 
and is to be sustained, if sustained at all, under the sixth Section of the 



456 

Act of 1870. This states that the defendant, with divers other evil dis- 
posed persons, etc., on the 6th day of March, 1871, did, etc. 

Now, the 6th of March, 1870, was about a month and ten days prior 
to the passage of the Act under which my distinguished friend thinks 
this count of the indictment was drawn. Of course we know better than 
that. It is not to be sustained by that Act ; that Act was not in exis- 
tence, as it appears from a bare inspection. Then it proceeds to state, 
" unlawfully did conspire," etc., " because he, the said Jim Williams, did 
exercise the right and privilege of voting," because he had done it at an 
election held by the people in said County on the third Wednesday of 
October, 1870. It has no reference to future elections; it was a conspi- 
racy to injure him, because he had exercised the right secured to him by . 
the law. Now that right is ex[)ressly set out in this sixth Section, which is, 
that if two or more persons shall band or conspire together, with intent 
to violate any provision of this Act, or to injure, oppress, threaten or in- 
timidate, &e. 

The Court will notice that this is the exact language of the indictment : 
with the intent to interfere with the right, or because of his having exer- 
cised that right. That is where the indictment rests. It is because he 
has exercised the right and privilege secured to him by the law, and that, 
I understood the Court to hold, was good. That was the ruling of the 
Court on the motion to quash, and I do think it is too late for us to argue 
that thing now. The Court hears arguments on both sides, and upon 
this the Court has ruled, and we do not think, unless the Court desires to 
hear extensive argument again, that we ought to indulge in it. 

Mr. Stanbery. I don't feel disposed to indulge in an}' specific argu- 
ment; the thing is as clear as it can be. We anchor on the Act of 1870, 
in which Act only has Congress made special provision for these acts 
under l^e Acts of '71, and made a different punishment. 

Mr. Corbin. The Act of '71 was not passed then. 

Mr. Stanbery. The gentleman does not understand me; if he will al- 
low me to complete ray sentence, he will see what I am aiming at. Con- 
gress has made special provision, by the Act of 1871, for every one of 
the acts committed under thiii Section of the amendment. The indict- 
ment reads word for word. If your Honors will compare the provision 
with the Act of '71, you will find that it is taken from it, word for word ; 
and I tell the gentleman that he drew his indictment under it, because he 
has used the same language. This had not to be written, therefore he did 
not get the caption, but it is the same for interfering with the Act of Con- 
gress ; they change it to the Act of '71. 

The conspiracy is ended when a man's life is taken ; there is no con- 
spiracy against the dead. This being a cou'^piracy for punishing Jim 
Williams for voting in 1870, and killing him on the 6th of March, there 



457 

was no object left for that conspiracy after he was dead, for it cannot be 
said that this conspiracy against a man who had been dead, for six weeks 
was still in force, and unexecuted at the time this subsequent law was 
passed. 

There is, therefore, a verdict in this case against the evidence and 
against the law. 



Columbia, December 28, 1871. 

THE SENTENCE. 

Mr. Corbin. Will the Court pass sentence in the case of Robert Hayes 
Mitchell ? He is in Court. 

Mr. Hart. Your Honors will recollect that was the case in whieli a 
motion was argued yesterday in arrest of judgment and for a now trial. 

Judge Bond. The Court will overrule the motion for a new trial and 
in arrest of judgment. 

The prisoner arose au(^ was interrogated by Judge Bond, as follows : 

Q. What have you to say for yourself why the Court should be lenient 
towards you ? 

A. Well, sir, I don't know what I ought to say, 

Q. Say everything you think ? 

A. Well, I might say right smart, and then it mightn't be much benefit. 
I don't know whether I can say anything to be of any benefit. I never 
was arrested, I went up to York and gave myself up to ]\[ajor Merrill, 
and told him all I knew, except some things he didn't ask me and didn't 
give me time to tell him, but sent me to jail. I came down here witli the 
intention of pleading guilty, and my lawyer kept me from it, and said 
not to plead guilty; said it was best for me not to do it. That was the 
reason I didn't plead guilty. I wasn't guilty of the charge, altliough I 
was guilty of being on the raid; but I didn't do anything. That was 
proven here, that I didn't do anything to any one that night. 

Q. You held the horses? 

A. I was with the horses ; I don't know that I held any horses but my 
own. 

Q,. Who was chief of your Klan? 

A. Well, Chambers Brown was once Chief; Robert Riggings was 
elected after this Chief. 

Q. How many members of your Klan were there ? 



458 

A. I don't know, sir, exactly, it was a pretty strong Klan — seventeen 
or eighteen raeu, I think, perhaps. 

Q. What proportion of the white people iu that section do you think 
were members of Klans ? 

A. I don't know; I can't say positively. 

Q. Give us your idea ? 

A. Well, there is a good many. 

Q. How many raids did you go on ? 

A. I was on that raid, and on another little raid that went to Charley 
Russell's house at Squire Sam Brown's, and at one meeting at Sharon, 
when we elected Chief; I never was on a raid in my life until the night 
we went to McConnellsville — the night Rainey was hung. 

Q. Had you heard that these raids had taken place before you joined 
the' order ? 

A. No, sir ; I joined the order in 1868, and I never had been on a 
raid in my life, and didn't know who else did belong, until the night that 
Ave went to McConnellsville. 

Q. I don't think you understood me ; had tliere been any raids before 
you joined ? 

A. No, sir ; there had never been raids. 

Q,. How soon after you joined did they begin ? 

A. Well, sir, I don't know ; it was some time; I don't think there was 
any raiding done, to iny knowledge, after I joined, until this last year ; a 
while before this Christmas a year ago, I think, was the first ; might have 
been in October or November — I don't remember exactly the time. 

Q. Did these people you raided upon have any sort of trial in the 
Klan ? 

A. No, sir ; they did not ; I didn't know a thing about it until Sunday 
evening. The man was hung on Monday, and I never heard his name be- 
fore in my life ; I didn't know anything about it at all. 

Q. Didn't you think it very remarkable that a parcel of men could be 
got together to go and hang a man you never heard of before ? 

A. I suppose there was men that did know the negro ; I didn't, though. 

Q. Had you determined that somebody was to be whipped ? 

A. Never heard that anybody was to be whipped. 

Q, There were people whipped frequently ? 

A. There mjght have been. 

Q. I want to know who determined the fact that A or B should have a 
whipping ? 

A. I am not able to say that ; I suppose the Klan gave the orders. 

Q. From the commander ? 

A. I don't know that. 

Q. There was no Committee to determine it ? 

% 



459 

A. Yes, sir ; there was a Committee. We elected a Committee. There 
was never nothing done after that. We had a meeting and elected a Chief. 
There was a Committee to attend to such things. I didn't know there 
was any whipping mentioned -in it ; there was none done after that, at 
any rate. 

Q. What is your business ? 

A. Farmer, sir. 

Q. Farm for yourself? 

A. Yes, sir ; I have been, the last two years. 

Judge Bryan. Mr. Mitchell, it has been your unhappiness to have 
been connected with a great crime ; and if the Court could believe that 
you were a party to that crime — that you had suspected the terrible deed 
that was to be done — and had any intimation that you had countenanced 
it, they would exhaust the full penalty of the laW, and then consider that 
you had been very mercifully dealt with. But you have come in and 
confessed; your manner has impressed the Court; and, although you 
were so misguided as to join a body of men to punish people, and punish 
them without responsibility to the law, yet we feel at liberty to believe 
that you have dealt candidly with the Court, and that you have told the 
truth. It is upon that conviction alone, that the Court finds its vindica- 
tion for accepting your declarations and believing that you were in no 
way a party to the murder. The sentence of the Court is, that you be 
imprisoned eighteen months and fined one hundred dollars. 



Part V. 



THE CASE OF JOPIN W. MITCHELL AND THOMAS B. 

WHITESIDES. 



Columbia, December 19, 1871. 
John W. Mitchell and Thomas B. Whitesides were arraigned upon an 
indictment, charging them with the general conspiracy against suffrage, 
and with a special conspiracy against Charles Leach, to prevent Leach's 
free exercise of suffrage. 

Li opening the case to the jury, the District Attorney said : 
It seems almost unnecessary that I should make any remarks to you 
upon this occasion, but, in order that you may clearly understand to 
whi«h point the testimony is to be directed, perhaps it may be as well 
that I should say a word or two in explanation. We propose, in the 
first place, to establish the fact of the existence of a conspiracy in York 
County against the rights of the colored people of that County, and the 
colored people generally, to exercise the right of voting, and that the 
object of that conspiracy was to prevent, by unlawful means, threats, 
force and violence, the colored people, w'ho are entitled to that privilege, 
from voting. We shall show to you that this conspiracy was thoroughly 
organized, and armed, and equipped, and that they were armed with pis- 
tols and guns, and that their uniform was a mask and gown called a Ku 
Klux gown ; that they carried out their purposes in the night time ; 
that they intended to intimidate, control and prevent from voting the 
colored voters of that County by whipping them at night, and by con- 
cealing themselves, and escaping under cover of the darkness of the 
night. This is the general conspiracy. We shall show you that these 
defendants were members of that conspiracy. We shall show you that, 
in pursuance of the general design of that conspiracy, both of the de- 
fendants, with others, went upon several raids, and particularly upon a 
raid u])()n Charles Leach, a colored man, of York County, a resident, 
and entitled to vote in that County ; that they whipped him severely, 
and whipped him because he had been a Radical, and voted the Radical 
ticket heretofore, and to prevent his voting it hereafter. We shall show 



461 

you, gentlemen, in this ease, that a great number of outrages were com- 
mitted iu York County, in pursuance of this general conspiracy, and by 
the conspirators ; that they whipped, shot at and maltreated numerous 
colored persons of that County who were entitled to vote ; and that, in 
pursuance of their general object, they not only whipped and beat col- 
ored men entitled to vote, but they whipped and ravished women in pur- 
suance of their general conspiracy. 

To this end, gentlemen of the jury, the testimony of the prosecution 
will be directed. 

TESTIMONY OF OSMOND GUNTHOKPE. 

Osmond Gunthorpe, a witness for the prosecution, was first introduced, 
and being duly sworn, testified as follows : 

Direct Examination by Mr. Corhiii. 

Q,. Are you a resident of York County ? 

A. Yes, sir. 

Q. How long have you resided there ? 

A. About eighteen months. 

Q. At what place ? 

A. Near Ebenezer. 

Q. State whether you were initiated into the Ku KIux organization, 
and if so, when ? ^ 

A. Yes, sir; it was in 1868. 

Q. By whom ? 

A. By Dr. Avery. 

Q,. State what was the general character of the oath you took on that 
occasion ? 

A. It was to protect widows, female friends, and their houses, and to 
reject the principles of the Radical party, and the penalty of divulging 
the secrets of the order was death. 

Q. Will you listen to this oath, and state whether you i-ecognize it as 
the oath taken by you when you were initiated into the order ? 

[The District Attorney here read the constitution of the Ku Klux 
Klan, already published,] 

A. There are portions of it that I recollect, and some that I do not. 

Q,. Which portions do you recollect ? 

A. One was to reject the principles of the Radical party. There is 
also that about protecting widows, our households and female friends ; 
fellow-members especially shall be under our protection, and the penalty 
is the same. 

Q,. What can you say as to the rest? 



462 

A. I don't recollect. It was repeated to me, but I never saw it. 

Q. What did you understand was the object of the order ? 

A. When I was requested to go into it, I understood it to be an organ- 
ization for self-protection. 

Q. Who represented that to you ? 

A. Dr. Avery. 

Q. Go on with your statement ? 

A. But after I had been in some time, I found it to be a political or- 
ganization in the interest of the Democratic party, 

Q. How did you learn that the objects of the organization were to be 
carried out? , 

A. It was to be put down by using no force ; they intended to crowd 
the ballot boxes at elections, and to prevent all the members of the Radi- 
cal party from voting that they could. 

Q. Did you aid in that business ? 

A. No, sir ; I did not. 

Q,. What did you do, when you found that this was the character of 
the organization. 

A. I asked for dismission from the organization. 

Q. From whom ? 

A, Dr. Avery. 

Q. Did you obtain such dismission ? 

A. Yes, sir. 

Q,. And severed your connection with tlie organization ? 

A. Yes, sir. 

Q,. How soon after you joined? 

A. I joined in August and severed ray connection in November. 

Cross- Examination hij Mr. W. B. Wilson. 

Q. You resided, at that time, near Rock Hill, in that County? Is that 
where the election was held ? 

A. Yes, sir. 

Q,. Were the Radical voters crowded from the ballot box in October, 
1870? 

A. I was not at Rock Hill at the time of the election. 

Q. Do you know of voters being interfered with at Rock Hill ? 

A. Not that I know. 

Q. Were they interfered witli at the Boynton box ? 

A. Not that I know. 

Q. Which population is in the majority at the Boynton box ? 

A. The white. 

Q. In a large majority? 



463 

A. Pretty large majority. 

Q. Can you say that it, was ever resolved at any meeting you attended 
to crowd voters from the ballot box ? 

A. It was not done at any meeting that I attended. 

Q. And no interference with the colored people at that box, as far as 
you know ? 

A. Not that I know. 

Q. How did you understand that this organization that you joined at 
Ebenezer was to crowd voters from the ballot box ? 

A. I was told so by a fellow-member. 

Q. By whom ? 

A. By Mr. Cathcart. 

Q,. "Where does he live ? 

A. At a mill near the Catawba River. 

Q. Was he Chief of the Klan ? 

A. No, sir. 

Q. How did he know ? 

A. He understood it at a meeting, I was not there. 

Q. The only reason, then, for your so stating it, was that Cathcart told 
you so ? 

A. Yes, sir. 

Q. Was not that a mere opinion? 

A. He said they had an agreement of that kind ; he did not say it was 
an opinion ; he said they had a meeting, and there was an agreement to 
that effect. 

(Objected to by counsel for the defense.) 

Q. You heard it from Mr. Cathcart, not from a meeting of the Klan ? 

A. Yes, sir ; from Mr. Cathcart. 

Q. That is the only way in which you derived your information ? 

A. Yes, sir. 

Q. Why did you ask for dismissal from the organization ? 

A. Because I was dissatisfied; it was not what I understood it to be. 

Q. Did you propose joining any other organization? 

A. No, sir ; I did not. 

Q. Do you know that the order which you say you joined at Ebenezer 
was broken up and disbanded soon after that ? 

A. No, sir ; I did not. 

•Q. Did you return to that neighborhood ? 

A. I was there one time after that, but I never had it named ; I staid 
all night with a neighbor, but I saw no person that belonged to the or- 
ganization. 

Q. You have no knowledge of the fact that the organization was 
entirely disbanded in that vicinity ? 



' 464 

A. iSTo, sir ; I have not. 

Q. It was understood by the order that there was to be no force used ? 

A. Yes, sir ; that is what I understood." 

Q. You understood that one object was self protection? 

A. YeS, sir ; that is what I understood before I joined. 

Q. Protection from what ? 

A. There were talkings, and they were fearful, that there would be dif- 
ficulty with the negroes. 

Q. That was one of the threats or rumors in the country ? 

A. I do not know w^hether there were any threats, but there was talk- 
ing, and they were fearful. 

Q. Did you exercise any precauticTn in the way of arming yourself? 

A. No, sir; I bought no arms, but I had some arms. 

Q,. Do you know of property being carried off at night ? 

A. No, sir. , 

Q. Do you know of property at Rock Hill being carried off at night ? 

A. No, sir. 

Q. You were initiated in 1868. How long had you lived there before 
you were initiated ? 

A. I moved there in January. 

Q. And you left there the following November ? 

A. Yes, sir. 

Q,. And that was the ouly time you lived in that neighborhood ? 

A. Yes, sir. 

Q. (by Mr. Corbin.) You say there was some talk of trouble with the 
negroes. Do you know of any trouble of that kind ? 

A. No, sir; I do not. 

Q. Did you participate in that fear ? 

A- I did not feel in any way particularly uneasy ; there was talk, but 
I do not know whether there was any danger or not. 

Q. You had no evidence of any such danger ? 

A. No, sir; only just talk. I never heard any of them make threats. 

Q. Was there any trouble with the negroes during the war? 

A. No, sir. 

Q. Did you reside in York County during the war? 

A. Yes, sir. 

Q. State whether the people of York County went generally into the 
war ? 

A. Yes, sir. 

Q. And left their wives at home with the colored people ? 

A, Yes, sir. 

Q,, And was it understood at the close of the, war that the object of 
the Union army was to free the slaves ? 



465 

(Question objected to.) 

Q,. Has there been any trouble with the colored people during the 
war ? 

A. Not where I live now, 

Q. Have they risen to butcher or destroy anybody ? 

A. No, sir. 

Q. (by Mr. Wilson.) The fear of rumors was not the cause of your 
joining the order, was it? 

A. I thought, sir, if there was such rumors, and they formed an or- 
ganization for self-pro tectioD, and other people thought there was danger, 
I would go into the organization with my friends and neighbors. 

Q. At the election of 1870, was there not a large, full vote? 
• A. There was a full vote, I believe, sir. 

TESTIMONY OF LAWSON B. DAVIS. 

Lawson B. Davis, a witness for the prosecution, being duly sworn, tes- 
tified as follows : 

Direct Examination by Mr. Corbin. 

Q. Where do you reside ? 

A. Sixteen miles, west of York, three miles south of Houuly Eoad, in 
York County. 

Q. How long have you resided there ? 

A. A little over two years. 

Q. State whether you joined an organization in York County know^n 
as the Ku Klux Klan ? 

A. I joined an organization in January, 1871 ; but it was then known 
as the " Invisible Empire of the South." 

Q. At what place were you initiated ? 

A. At my own house. 

Q. By whom ? 

A. Wesley Smith, a brother of mine, J. F. Fox and Marshall Davis. 

Q. State the mode of initiation ? 

A. The men were not in disguise, and I was not blindfolded. The 
oath was administered to me, but it was after night, in the yard of mv 
own house. 

Q,. Was the oath read or repeated to you ? 

A. It was repeated. There was no Avritten document. 

Q,. State what the oath was ? 

A. I cannot state it accurately. I cannot recollect anything, except- 
ing the concluding clause, which was death. 
Q. State the substance of the oath ? 
30 



466 

A. It was iutended for self-protection, bat I cannot state fully the 
substance of the oath. I have not seen it since, bat I should know it if 
I should hear it. 

[Mr. Corbin here read the constitution.] 
Q. Is that the oath you took ? 

A. That is about the oath. I think it embodies the principles to 
which I swore. 

Q. Do you remember anything that was not in that oath ? 
A. If my memory serves me, there was nothing in opposition to the 
Radical party. I think it was opposition to the thirteenth and four- 
teenth amendments to the Constitution. 

Q. What signs and passwords were given you ? 

A. I do not know all. One of the signs was taking the lappel of the 
coat with the right hand, which was answered by the other party taking 
the lappel with his left hand. Another sign was putting the hand care- . 
lessly into the pocket, leaving the thumb to be seen. I don't remember 
the answer to that. Another, passing the hand carelessly over the right 
ear towards the front. The answer to that was passing the left hand 
over the left ear. 

Q. Do you remember any other signs ? 

A. I remember the bywords and passwords used in meeting parties. 
You would use the word s-a-y — that is, spelling the word, but not pro- 
nouncing it — followed by " who are you ?" The answer to that challenge 
was n-o-t-h-i-n-g, spelling the word, using the letters, but not pronouncing 
it, and using those signs. 

Q. Have you frequently i-ecognized members of the Klan ? 
A. Not frequently. 
Q. Have you ever done it ? 

A. I recognized once a party in disguise by giving the words ; that 
was in February, after I was initiated in January, near Lii^estone 
Springs. 

Q. What were the circumstances? 

A. I challenged the party, and said : " I s-a-y, who are you ?" and was 
answered : " N-o-t-h-i-n-g." They then passed me by ; they were in dis- 
guise. 

Q,. What time of night was it? 

A. I suppose 10 o'clock. 

Q. Did you know any of the party ? 

A. No, sir ; none of them. 

Q,. Was it a large party ? 

A . I judge it to be twenty-two or twenty-four. 

Q. State if you ever attended a meeting of the Ku Klux Klan ? 

A. I attended one. 



467 

Q. Where was it ? 

A. Near where I live. 

Q. When was it ? 

A. A few nights after I was sworn into the organization ; it was out of 
doors, 10 o'clock at night. 

Q. Who was present at that meeting? 

A. I cannot name -all the parties; there was Tom Parks, Jefferson 
.Gardner, Widiam Gardner, Charles Kidd, Charles Byers and Joseph 
Smith. 

Q. Who was the Chief? 

A. Charles Byers was the Chief. 

Q. What was done ? 

A. The Klan was organized by electing Chafles Byers Chief of the 
Klan, and appointing myself Secretary ; a younger brother of mine was 
appointed Monarch. 

Q,. Any other officers elected ? 

A. William Goode was appointed Grand Turk; he, also, was present 
at the meeting, but it had escaped my memory. 

Q,. Have you heard the constitution and by-laws of the organization 
read ? 

A. I read thern on that night. 

[A paper was here handed the witness.] 

Q. Do you recognize that as the organization and bydaws of the 
Klan ? 

A. I see it embodies the same, except that the Ku KIux Klan was 
then known as the Invisible Empire of the South. The constitution 
and bydaws embodies the same as those to which I swore. 

Q. Was that the first time you ever heard or read the constitu- 
tion ? 

A. Yes, sir. 

Q. How was the purposes of that organization to be carried into 
effect ? 

A. Those present at the meeting I attended, told me the parties 
against whom charges had been preferred must be visited and asked 
to change their opinion, and to vote the Democratic ticket. In case 
they did not do it, they were to be visited again and corrected by mem- 
bers of the Klan, and, if they refused, to be whipped ; and, if they 
again refused, they were required to leave the County; in case they 
did not comply, they were to be killed. Those were the statements of 
members of the order. 

Q. The operations of the Klan were to be directed against Radicals — 
that is. Republicans? 

A. Yes, sir ; against Republicans. 



468 

Q. Scate what you know of the practical carrying out of that pro- 
gramme ? 

A. I never saw any of it carried into operation, but I have seen 
parties who say they executed the orders of the organization. 

[Testimony objected to.] 

Q. by the Court. Were they members of the KUm themselves. 

A. Yes, sir. 

Q. Have you learned from members of the Khin how they executed 
the purposes of it ? 

A. I have. 

Q. State what members of the Klan told you of them ; what they 
did, and what they said they had done in pursuance of the purposes 
of the organization ? 

A. Mr. Wesley Smith told me that he, ia compauy with three other 
men, had killed Charles Good. 

Q,. Who were the others that he told you assisted him ? 

A. William Smith and William White. Smith was present and ac- 
knowledged that he had participated in killing Charley Good. 

Q. Who is Charley Good? 

A. A colored man, who lives three or four miles from me. 

Q. What were his politics ? 

A. Republican. 

Q,. Was he well known to you and the community ? 

A. Yes, sir; he was known as a Radical or Republican. 

Q,. Had you at any time any conversation with Charles Good ? 

A. Yes, sir. Charles Good was a blacksmith; he did my black- 
smithing at his house. He told me that he had been visited and 
whipped by the Klan because he was a Republican and would not 
change his opinions, but would vote the ticket again. I told him he 
had better not repeat that. About four weeks after, they returned and 
killed him. 

Q. Was he a prominent man among the colored people in that 
neighborhood ? 

A. I had known him about sixteen months before he was killed ; 
he was rather a prominent negro in the onuiuiuity. 

Q. Was he a preacher ? 

A. He was not. 

Q. Tell the Court and jury what you know about the manner of 
his death? 

A. I know nothing, except those persons wlio came to me and told 
rae I had been summoned to go with thera and others to put the body 
of Charles Good into the river. That was the summons I received. 
It was in furtherance of the order which they gave me from the six 



469 

composing the Klan. Charles Byers directed me. I knew no others, of 
my positive' knowledge. I knew him to be Chief of the Klan, He 
said that I must go with the party and put his body into the river. 
I went out about the hour of nine, and went to Mr. Howell's residence, 
and there, in conversation with me, he expressed a desire not to go with 
the party. I told him it exactly correspoaded with mj feelings. I had 
not seen the body, and did not wish to, and we did not go until we 
thought the hour had passed, and remained there until the party came 
back. 

Q,. Were tliey men of your Klan ? 

A. I do not remember any present attached to my own Klan. 

Q,. Were there any persons that you knew ? 

A. There were several persons I knew ; none of the parties were in dis- 
guise that I seen. I recognized Wesley Smith, Samuel Smith, T. L. Barr 
and Piuckney Caldwell. 

Q,. Was Wesley Smith the man who told you to go ? 

A. Yes, sir. 

Q. What had they done with the body ? 

A. They remarked that the body was in the Broad River ; he knew it 
was at the bottom, well jamiried down and secured. He stated the negro 
was very heavy to carry. 

Q. Did they tell you how they fastened him down in the river? 

A. Wesley Smith stated that there was cotton bagging wrapped around 
the body, a,nd log chains were fastened around him, and to that they at- 
tached some heavy ploughshares, aud Pinckney Caldwell said he had 
pinned the body to the bottom, for he had jumped in upon it, with stakes 
furnished him from the bank, and with these he 4iad fastened it to the 
bottom. 

Q. How long was this after Charley Good was killed that his body was 
disposed of in this way ? 

A. If I mistake not, it was Friday night that this was done, and the 
act, I believe, was done on Wednesday night. 

Q,. State how the Smiths, or the party engaged, killed him ? 

A. Wesley Smith said he had attempted to shoot him, but the gun not 
going off in his hand, he turned to his companion and asked him if he 
could got it to go off. The negro asked hirri if he intended to kill him, 
and AVesley Smith said not kill him, but whip him well ; but the gun was 
discharged ; he was not killed with the shot, but fell, and William Smith 
told me afterwards that he finished him with his gun. Wesley Smith 
said, " When I left he was finished." 

Q,. Where did that, occur ? 

A.. It was near Wesley Smith's residence, some quarter of a mile south- 
east from his residence. 



470 

Q. Where was it you were ordered to meet that night to go and dis- 
pose of the body of Charles Good ? 

A. Some four or five hundred yards from Wesley Smith's house, where 
they said the body laid. 

Q. What was the object of assembling the Klan ? 
A. I only know, from the stsatement given me by^Wesley Smith, that 
it was to render it impossible for anybody in the neighborhood from giv- 
ing evidence of the fact. 

Q. Do you know whether the body has since been found? 
A. I never heard that it has been found. 
' Q. Do you know of any other transactions of the Klan from any- 
body ? 

A. Not from my own knowledge, but Charley Byers told me lie was 
on one raid. 

Q. State what he told you of the operations of the Klan ? 
A. He told me particularly in reference to whipping a colored man 
near Avhere I lived, named Jerry Adams. He discharged his gun over 
the door of Jerry Adams as lie ran, but when they surrounded his house, 
and he attempted to run, Charley Byers shot at the door over his head, 
to scare him ; that is what he stated to me. 

Q. Do you know of any other transactions of the Klan ? 
A. That is all I think of at present. 

Q. Did you meet any that you recognized as members of the Klan in 
North Carolina ? ' 

A. I met a party initiating a Methodist preacher once. 
Q. State the i^articulars ? 

A. When I came up with the party they were initiating him, and they 
completed the business. 
Q. Did he take the oath ? 
A. Yes, sir. 

Q. Do you know his name ? 
■ A. It was James Carpenter; this was in Polk County. 
Q. Was the oath the same as you had taken in your Klan ? 
A. Yes, sir. 

Q. Were the signs the same ? 

A. Yes, sir ; I recognized the men by a sign ; they had halted me, and 
they gave me the sign, and I answered. 
Q. Did you know the parties ? 

A. I knew the Prices ; they were peddlers ; one was called Dick and 
the other was called Skip. 

Q. Did you have their constitution and by-laws ;'' 
A. They had no constitution, only the by-laws. 
Q. When was that ? 



471 

A. On the 1st of February, 1871, to the best of my recollection. 

Q. Did you say that when 3^ou joined this organization, you under- 
stood it to be one for self-protection ? 

A. Yes, sir. 

Q. After you got inside, what did you find it to he ? 

A. That it was an organization in the interest of the Democratic 
party. 

Q. Do you know any other of these defendants? 

A. I know Mr. Whitesides ; I don't know Mr. Mitchell ; I never had 
any accjuaintance with him. 

Q. AVhat Klans were stationed near you ? 

A. Two ; one was known as the Small Klan, the other as the Mitchell 
Klan. 

Q,. Is this defendant the Mitchell you refer to? 

A. I do not know ; I never had any acquaintance with him at all. 

Cross- Examination by Mr. W. B. Wilson. 

Q. You stated the order was to protect yourselves from what ? 

A. There were reports in the County, at that time, that there was some 
danger from the armed militia — armed by Governor Scott ; and the order 
stated to me that it was to protect ourselves in case of any demonstration 
by this armed militia. ' 

Q. Were they colored militia? 

A. Yes, sir. 

Q. How many companies of colored militia were armed in York 
County at that time? 

A. I heard of one, but don't know if it was armed. 

Q. Were there any white companies armed by Governor Scott ? 

A. None that I know of in the County. 

Q. With what kind of weapons were these companies armed ? 

A. I understood they were armed with United States guns. 

Q. Did you ever see one of those guns? 

A. No, sir. 

Q. Were there any fires in that vicinity. 

A. The nearest was Mr. Crosby's gin house. 

Q. Was that burned ? 

A. Yes, sir. 

Q. Were there fires from incendiaries in that County? 

A. Reports were current in the County ; more in the northern portion 
than in ours ; I have no knowledge of any of them. * 

Q. Was the object of this order to protect yourselves from the armed 
militia, or incendiarism, or other acts of violence? 



472 

A. To protect ourselves from any acts of violence that might happen, 
by the armed militia, as I understood it. 

Q,. Was there any interference with the voters at the last fclectiou, 
1870 ? 

A. I have not attended an election since I came into the State. 

Q. You have never met with Dr. Whitesides in any meeting of the 
Klan ? 

A. I have met him frequently, but never met him in the Ku Klux 
organization. 

Q. (l)y Mr. Corbin). You say you were told that the object of the 
organization was as you stated? 

A. Yes, sir. 

Q. But when you got inside of the organisation did you find it to be 
different ? 

A. Found the object to be very different, in my opinion, from what 
they told me ; and from the results I knew it to be difiereut. 

Q. Did you know of any acts of violence committed by the militia 
company ? 

A. None, of my own knowledge. » 

Q. Had you ever any reason to fear the militia company ? 

A. I never had any fears of any. 

Q. Did you fear the colored people about you ? 

A. No, sir ; I never feared any of them. 

Q. Was there raiding about the County before you joined the Ku 
Klux Klan ? 

A. The reports were that there were many raids through the County 
before I joined. 

Q. Were the fires before or after the raiding commenced? 

A. I cannot be definite about that. 

Q. Was tlicre any knowledge as to who set fire to the Crosby gin 
house ? 

A. None at all. 

Q. Do you know that it was attributed to a militia company ? 

A. I never heard it charged to them. 

TESTIMONY OF KIRKLAND L. GUNN. 

Kirkland L. Gunu, a witness for the prosecution, being duly sworn, 
testified as follows : 

Q. (by Mr. Corbin). Where do you reside? 

A. York County. 

Q. How long have you resided there ? 

A. I was born and raised there. 

Q. In what portion of the County ? 



473 

A. My father lives in the south portion of the County. 

Q. What is your age ? 

A. Twenty-one years. 

Q. What is your profession and business ? 

A. I am a photograplier. 

Q. Have you carried on that business in York County ? 

A. I have, s:r. 

Q. State whether you have been initiated a member of the Ku Klux 
Klan? 

A. I was initiated in January, 1871, and became a member of the Ku 
Klux Klan. 

Q. Where? 

A. At Wesley Smith's, near his house. 

Q. Did you take the oath ? 

A. I did. 

Q. Was the oath read to you ? 

A. The constitution and by-laws were read to me. 

Q. Do you remember the oath ? 

A. Yes, sir. 

Q. What was the oath, in substance? 

A. It was, not to reveal the secrets of the Klan ; that the purpose of'' 
the Klan was to put dcjwn Radicalism, and rule the negro suffrage. [A 
joaper was here handed the witness.] . 

•Q,. State if that is substantially what was read to you on that occa- 
sion? 

A. Yes, sir ; the obligation is the same, (the witness was here requested 
to read the paper through,) it is the same that was read to me. The con-' 
stitution and by-laws of the Ku Klux Klan were here read by the At- 
torney General in open Court. 

Q,. State the general purpose and object of the order as you understood 
them ? 

A. I heard them stated to me. It was to put down the Radical party 
and rule negro suftVage. 

Q. How were those purposes to be carried out ? 

A. It was told to me by members of the Klan that it was to be by 
whipping negroes and intimidating them and keeping them from voting, 
and to kill all such white men as took Radical offices, and who then oc- 
cupied offices. 

Q. How was the organization armed ? 

A. Some were armed with pistols and some with shot guns, and some 
with muskets — just whatever was convenient. 

Q. What was the Ku Klux gown ? 



474 

A. A long gowii made of some dark colored stuff. I never saw one in 
daylight, 

Q. Was that worn on all occasions while on duty ? 

A. This was my understanding ; that it was to be worn on all occa- 
sions. 

Q. Were these operations to be carried on in the daylight or dark ? 

A. All this was in the night. Whenever the Klan was on duty, they 
were known and designated by number. 

Q. How were they numbered ? 

A. Each man was to be numbered. Sometimes they would begin with 
No. 1, and sometimes they would begin with five hundred; they would 
begin with any number they chose, and then run on. 

Q. WJiat was the object of that ? 

A. To keep from calling names. 

Q. Was it to assist in their concealment ? 

A. Yes, sir. 

Q,. Who was the highest officer who commanded whenever a meeting 
was called or when they went on a raid ? 

A. I didn't know the highest officer ; the Chief was the highest I 
knew. 

Q,. What did they call this business of going after colored men and 
whipping them ? 

A. Raiding. 

Q. Did you ever go on any raiding ? 

A. I never was on one ; was called to go oh two raids. 

Q. By whom ? 

A. By order of the Chief. I was told so by the person who brought 
the message. John Wallace was the person who brought me the first 
message. 

Q. Who was the Chief? 

A. John IMitchell. 

Q. Is this the man hei'e ? [pointing to the defendant, J. W. Mitchell] 

A. Yes, sir. 

Q. Was he Chief of the Klan ? 

A. Yes, sir. 

Q. Wiiat was the name of the Klan ? 

A. It was called JMitchell's Khin. 

Q,. Have you frequently seen this person ? 

A. I have met him several times, and met him once in the capacity of 
Chief. 

Q,. State the circumstances of the meeting ? 

A. I was told by Wallace, there was to be a meeting held at Barkley's 
Mill, for the purpose of raiding Bill Kell, and to kill him for being 



475 

President of the Uuioii League. Those were the words Wallace stated 
to me. 

Q. What was Wallace's position in the Klan ? 

A. He was known as a Night Hawk. 

Q. How long did you receive^ this order before the time of the meet- 
ing? 

A. I think it was two days before the meeting. 

Q. Pursuant to that notice did you meet the Klan ? 

A. I did. 

Q. State who you met there ? 

A. I met there that person, J. W. Mitchell, Whiley, Ed. Lt^ech, Ar- 
ney Neil, Chas. W. Foster, Wesley Smith, Joe Smith, Thomas McAllen, 
and a good many others 1 knew, but I cannot remember their names 
now. 

Q. How many persons were present at that meeting? 

A. I should say from thirty to thirty-five persons. 

Q. Were they mounted or on foot ? 

A. They were all mounted. 

Q. Were they disguised or not ? 

A. Some were disguised and some were not. 

Q,. Did you go on that raid ? 

A. No, sir. 

Q. Why? 

A. Because Mr. Hugh Kell was there. It was thought he was sent 
there for the purpose of letting it be known if Kell was killed — that he 
might be a witness. 

Q. Was Hugh Kell a member of the Klan ? 

A. I don't know whether he was or not. 

Q. Who brought the disguises there, and who took them away? 

A. Mr. Mitchell did. 

Q. What did he bring the disguise in ? 

A. He brought it in a sack. 

Q. What did he carry them in ? , 

A. In a sack. 

Q. Did you see him put them in ? 

A. I saw him put one disguise in a sack. 

Q. Was there any talk of killing Hugh Kell? 

A. I heard soma one say he was to be killed, but I heard no one say 
they wanted to kill him. ^ 

Q. What did they do finally ? 

A. Tliere were some rough words between Mitchell and Kell. I don't 
know what they were, but they were rough, from what I heard others 



476 

say of them. Mr. Mitchell ordered the Klan to go home and wait till he 
ordered iheni out again. 

Q. Did you kuow Bill Kell — the mau they proposed to kill ? 

A. No, sir. 

Q,. What other raid do you know of? 

A. I was ordered to go on one raid on Jenny Good. 

Q. Did you go upon that raid ? 

A. .]S"o, sir. 

Q. Why not ? 

A. I had no saddle to ride. 

Q. From whom did you receive' the order to go there? 

A. I don't remember now who told me they were going to have a 
raid. 

Q,. Who did he say he gave orders to for that raid? 

A. Charles Byers. 
' Q. Was that Klan located near you ? 

A. About two miles from where I was. 

Q. Who were the two Chiefs of the Klan residing there ? 

A. Byers and Mitchell. 

Q. Did they order out the members of the other Klan ? 

A. They would invite the members of the other Klan to go with them — 
not order them. 

Q. Were you invited to go on that raid ? 

A. Yes, sir. 

Q. How many members were there in Mitchell's Klan ? 

A. I don't know. 

Q. Have you any means of knowing from those you saw ? 

A. I don't know ; there might have been members of other Klaus. 

Q. How many men were there in Charley Byers' Klan ? 

A. I think sixteen or seventeen ; I don't remember the number. 

Q. Do you know of any other Klan in that vicinity ? 

A. I do not, but have heard of others. 

Q. Did you ever recognize a pei'sou by the name of Squire Sam 
Brown as a Ku Klux ? 

A. I have, sir. 

Q. Where? 

A. At Wile)''s store. 

Q. How did you recognize him ? 

A. By a sign. 

Q. What sign did you give him ? 

A. Pa sing the hand over the right car ; he answered by passing his 
band over his left ear. 

Q. What conversation, if any, did you hear there from Samuel Brown? 



477 • 

A. He and Wesley Smith were standing;, and they had been engaged 
in conversation. Smith stood up, and Brown gave him that sign ; 
then he turned to Smith and asked, respecting me, " is this man all 
right?" Then he said "you know I would nothavosuch business, without 
having men that were all right." Then, after some further conversation, 
I heard him say, " I can go and take my Klan, and whip more damn 
niggers than any other Klan in York County." 

Q. Where does »Squii'e Sam Brown live? 

A. I don't knoAV. I think it is west of Yorkville. 

Q. Do you see that gentleman in Court here? 

A. Yes, sir; there he sits (pointing.) 

Q. State what were the signs and passwords of the order, and how 
they use them on occasion ? 

A. One was passing the right hand over the right ear; this was an- 
swered by passing the left hand over the left ear; the next sign was put- 
ting the right hand in the pocket of the pants, leaving the thumb to be 
seen ; if you wished to find out if a person belonged to the organization 
he returned it with his left hand in the same way ; the next sign was 
putting the heel- of the right foot in the hollow of the left ; this was an- 
swered by putting the left heel in the hollow of the right foot. 

Q. What were the passwords ? 

A. If you met a man or a party you would say, "S-a-y, who are 
you?" This was answered by, " N-o-t-h-i-n-g," without pronouncing the 
word. 

Q. Have you frequently met andTCcognized members of the order by 
these words ? 

A. I have met them by signs, but not by words. 
■ Q,. Had they a grip ; if so, explain it ? 

A. In grasping the hand the little finger would go between the foiirth 
and little finger of the hand you grasped, and the forefinger would stretch 
up and touch the wrist. 

Q. Have you frequently exchanged that grip ? 

A. Yery often, sir. 

Cross-Examination by Mr. Wilson. 

Q. Have you any knowledge of Dr. Thomas Whitesides being a n:em- 
ber of this order ? 

A. I do not know that he is a member. 

Q. Have you not reason for knowing that he is not ? 

A. I have given him signs and he did not return them. 

Q. You tried, then, by giving him the signs and he did not answer? 

A. Yes, sir ; I gave him signs and he did not respond. 

Q. What sign did you give him ? 



478 

A. Passing the right hand over the right ear. 

Q. Have you auy other reason for knowing he is not a member ? 

A. I heard him say it was the most damnable thing in the country? 

Q. (by Mr. C. D. Melton.) What are the relations between you and Mr. 
Mitchell; are they those of friendship or otherwise? 

A. As to my feelings, they have always been those of friendship. 

Q. There was some cause of misunderstanding, was there not? 

A, Not oh my part. I had my photographic instrument in the church 
that he had something to do with, and he told me to take it out, but it 
caused no hard feeling on my part. 

Q. Had you any conversation on the subject with Mr. McKeow? 

A. I have no recollection of it. 

Q. You say you never used any harsh language? 

A. No, sir; none. 

Q. And never had any unkind feelings towards Mr. Mitchell ? 

A. No, sir ; I had none. 

Q. (by Mr. Corbin.) When do you say it was that you recognized Mr. 
Whitesides was not a member of the order ? 

A. I think it was last March. 

Q. Hud you any special conversation about the Ku Klux order ? 

A. Yes, sir; he said something about the Ku Klux; he had some 
negroes that they visited, and he and his brother went to try to pacify 
them ; he said it was the most danmable curse, or the most damnable 
affair in the country; I then gave him the sign, but he did not respond. 

TESTIMONY OF CHARLES W. FOSTER. 

Direct Examination by Mr. Corbin. 

Q. Where do you reside ? 

A. York County. 

Q. How long have you resided there? 

A. Ever since the war. ^ ' 

Q. Where did you live prior to the war ? 

A, I was in Georgia during the war. 

Q. Were you a soldier in the Confederate service ? "^ 

A. I was, sir. 

Q. Do you know these defendants ? 

A. Yes, sir; Mr. Whitesides and Mr. Mitchell, I do. 

Q. Where do they reside ? 

A. In York County. 

Q. How long have 3'ou known them ? 

A. I have known them a good while. 

Q. How many years. 



479 

A. I have known tliem ever since I was big enough to know any- 
thing. Dr. Whitesides and myself were partly raised togedier; his father 
had a plantation near to my father's. 

Q. How long have you known Mr. Mitchell ? 

A. For the last twenty years. 

Q. Where did you know him ? 

A. In York County. 

Q. In what regiment were you a soldier? 

A. In the 1st Georgia Regulars. 

Q. Did you know Captain Mitchell in the army? 

A. Only from Avhat I heard. 

Q. Have you been a member of the Ku Klux Klan ? 

A. Yes, sir. 

Q. When did you join it? 

A. About the 15th day of last September. 

Q. Where did you join it? 

A. Near Mt. Vernon Church. 

Q. What portion of the County is that ? 

A. It is in the upper part of York County. 

Q. Who initiated you ? 

A. Herod Neale and James Howard. 

Q. Did you take the oath when, you were initiated ? 

A. It was something; I don't know whether it was an oath. 

Q. Can you state the substance of it ? 

A. The first was that we shoukr protect the women and children, and 
put down Radicalism ; whip and kill out those leading characters — white 
and black — that belonged to the Radical party, if there was any resist- 
ance. I remember that part of it very well. 

Q. Which part of it ? 

A. I think it is about the same, as w^ell as I can remember it. 

Q. Did you ever hear the constitution and by-laws read ? 

A. Yes, sir ; I have heard them read several times, but I didn't pay a 
great deal of attention to it. 

Q. Do you recollect whether each member was required to arm him- 
self with a pistol, Ku Klux gown and signal instrument ? 

A. Yes, sir. 

Q. Do you remember whether it was an article, also, that no col- 
ored man should be adraijited in the organization? 

A. There was pone allowed, sir, in the organization. 

Q. Will you state what this Ku Klux gown was? 

A. It was a gown. The one that I had was a solid red, and a sack came 
over your head, and a string to draw around "your neck, 

Q,. What was the object of it ? 



480 

A. It Avas to disguise ^ourself. 

Q. When was it to be worn ? 

A. Whenever you went on raids. 

Q. What was the signal whistle ? 

A. It was composed of some kind of mettle, made a very loud, 
shrill noise, and was used to give signals with. 

Q. Used when ? 

A. Used when you were going on meetings and raids generally. 

Q,. Wex'e the names of the Klan called when orders were given on 
raids ? 

A. There were no names to be called above a whisper. 

Q. Were voices to be disguised or not? 

A. Yes, sir ; their voices were to be changed ; that was particular. 

Q. What was the object? 

A. To keep from being found out, I suppose. 

Q. What style of talk or language did they adopt usually for con- 
cealing their voices? 

A. Some talked Irish and Dutch. They had all kinds of talk to 
change their voices. 

Q. Did you, in pursuance of the object of the Klan, go upon raids 
yourself? 

A. I was, twice, sir. 

Q. Which raid first? 

A. I was on the raid first on the night of the 9th of last January. 

Q. Who was present on that raid ? 

A. There were Captain John Mitchell, Joseph Mitchell, Milton 
Watson, William Good, Robert McCreight, Charles Byers, John Da- 
vis, T. B. Whitesides, and said to be Pinckney Webber, leading 
Parker's JClan, from the other side of the river, in Union. 

Q. Those men named first were members of what Klan ? 

A. Said to be members of Eleazor Parker's Klan. 

Q. But those on this side? 

A. Members of John Mitchell's Khin, part of them were. 

Q. Was it this John Mitchell ? [pointing to the prisoner]. 

A. That is the man, sir. 

Q. You mentioned Dr. T. B, Whitesides? 

A. Yes, sir. 

Q. Is this the man ? [pointing to the prisoner]. 

A. lie was present that night. I left Milton Watson's house with 
him and jNIilton Watson, and went on before them and got my 
saddlo, and met them on top of the hill, between my house and Mr. 
Smith's j)lace. 

Q. And then went with them to the place of rendezvous ? 



481 

A. Went to the ferry, and waited for the Klan. 

Q, You saw Dr. Whitesides without his mask ou ? 

A. I did, sir, before he put it on. 

Q. Did you see Captain JMitchell without his mask on ? 

A. No, sir ; he had his mask on the night when he came to the ferry, 
but I recognized him ; there was a general talk all through to each 
other. 

Q. How did you recognize him ? 

A. By him coming up, aud others asking who he was ; some said it 
was Captain Mitchell, and some said Joe Mitchell was along in the 
same party. 

Q. Who commanded ? 

A. Webber took command, sir. 

Q. How many were in the party before you started ? 

A. After we met at the ferry ? ^ 

Q. Yes? 

A. I think they numbered twenty. 

Q,. Where did you go fii-st ? 

A. They went first to Ro\Yland Thompson's place, on the same road, 
and Webber he ran into Pressly Holmes' there, and kicked down the 
door, jerked him out of bed, took him up to the old store, made him strip 
off his shirt, and whipped him pretty bad. I heard Mr. Smith say, a 
few days after, that he was sorry enough for the nigger to cry, if it would 
have done any good ; that is John Smith, at Rowland Thompson's plan- 
tation. 

Q. What was the nest place you went to ? 
' The Court. Let the witness detail all the circumstances, 

Q. Tell the particulars of that whi2:)ping ? 

A. They vvhipped him. 

The Court. How did they get him out of bed ? 

A. I did not see them ; I saw Webber when he got out of the door ; he 
had him by the arms. 

The Court. Anybody else there ? 

A. Yes, sir ; the wife and daughter. 

Q. Tell us all about it ? 

A. Taken him up to the store. 

Q. Well, what was said and done ? 

A. I don't recollect what was said, only they were going to whip him 
about some remarks he had made about being buried in a whif^ person's 
grave yard. 

Q. Anything else talked about ? 

A. I think they whipped him, and made him give the Union League 



482 

sigus ; tliey said he was a member of the Union League, and he had been 
attending some meeting of the League. 

• Q. Anything said about his having voted the Radical ticket? 

A. They told him not to vote the Radical ticket any more ; to let poli- 
tics alone ; the white men always have ruled this country, and they in- 
tend to do it. 

Q. Anybody present except the Klan ? 

A. No one, as I know of 

Q. Do you know who did the whipping ? 

A. r do not. 

Q. AVhere did you go next ? 

A. AVent, then, to Widow Thompson's place, to the Beauty Spot. 

Q. What was done there ? 

A. They had taken out a boy there by the name of Jerry Thomp- 
son. 

The Court. What do you mean by that ? 

A. They knocked down his door, and took him out doors, and whipped 
him ; they also broke his gun ; they whipped him severe ; I think they 
made him strip off his clothes. 

The Court. What with ? 

A. Cowhides and hickories. 

Q. How many whipped him ? 

A. I do not know how many. 

The Court. More than one ? 

A. Yes, sir ; three or four — may be more. 

Q,. Take turns ? 

A. They whipped pretty much all at one time, some of them, and at 
last they ceased off. 

Q. What did they talk to him about ? 

A. About some threats he had made against an old soldier. 

Q. What else ? 

A. Something about his politics, I think. • 

Q. Do you recollect what was said ? 

A. I cannot recollect, sir. 

Q. Do you recollect what his politics were? 

A. I do not ; it was generally supposed, though, that he was a 
Radical. 

Q. You understood that you were doing this in pursuance of the pur- 
poses of the Klan ? • 

A. Yes, sir ; that was my understanding. 

Q. Where next did you go ? 

A. We went, then, to Mr. Moore's plantation, and taken out Charley 
Good ; they whipped him and beat him ; I saw one man with a stick nearly 



483 

as large as my wrist, and some were kicking and some whipping, and 
they came very near killing him. 

Q. What did they say to him ? 

A. They told him to let politics alone ; that they understood he was 
an officer in the Union League. 

Q. Was this the man who was subsequently killed? 

A, Yes, sir ; I heard afterwards he was killed. 

The Court. What time of night did you go there? 

A. I suppose it was about 1 o'clock, may be later. 

The Court. Was the man up ? 

A. No, sir; he was in bed. 

Th% Court. His family? 

A. Yes, sir; as far as I know ; I did not go in his house myself 

Q. Anything else occur there more than what you have stated ? 

A. Well, there was a boy by the name of John Adams run out, and 
they taken after him and shot at him ; he was a colored boy. 

Q,. Who fired after him ? 

A. I don't know who ; it was done by the party though. 

Q. Did they hit him ? 

A. I think not, sir. 

Q. He escaped ? 

A. No, sir; they overtaken him, but didn't do anything to him ; at 
least, I didn't see them hurt him; they went up then to Madison Smart's, 
and taken Charles Leach out, a colored riian, and gave him a dress- 
ing. 

Q,. What did they whip him for ? 

A. About his j^olitics. 

Q. What did they say to him ? 

A. Told him he was a member of the League, and must let it alone. 
I heard one man ask him, says he, "had you rather take a hundred lashes 
or be killed?" and he said he would rather five hundred lashes. 

Q. Did they go to work and lash him ? 

A. They gave him about fifty lashes, I think, W'ith hickories and cow- 
hides, probably a whip attached to it. 

Q,. Say anything about his politics ? 

A. Told him to let Radicalism alone. 

Q. Then what next ? 

A. Went then and whipped a boy by the name of Amos Howell. 

Q. Where did they find him ? 

A. In his house, sir. 

Q. How did they get to him ? 

As I didn't go into the yard ; they were coming out with him when I 
came up; I was in the rear ; I came up to the lot and stopped ; they 



484 

didn't ^vhip liiin very much ; tliey. gave hiiu, I think I heard somebody 
say afterwards, about fifty lashes. 

Q. What did you hear them say to him ? 

A. I didn't hear the conversation ; they taken him off from me some 
seventy-five yards. 

Q. You heard the beating? 

A. Yes, sir; I could hear the blows. 

Q. Where did they go next ? 

A. They dispersed then and went towards the ferry, some of them. 

Q. Whom did you go home with ? 

A. I think Dr. Whitesides, Milton Watson and myself, went together 
as far as my house. f 

Q. Where did you take oflT your disguises ? 

A. Well, I don't recollect where. 

Q. Were the parties all disguised during this series of whippings ? 

A. Yes, sir; well, there was two or three that took off their disguises 
and went down to Plenry Thompson's quarter; I think Charley Byers, 
John Davis and Joe Smith, when they were going home. 

Q. Did you take off your disguises ? 

A. I don't recollect whether we had taken them off before we got home 
or not. 

Q. You saw Whitesides after he had taken his ofi*? 

A. No, sir; I don't think I did; I thiuk probably we went home with 
our disguises on, or near home. 

Q. Have conversation ail the way home ? 

A. No, sir; I don't think we had much. 

Q. Did you talk with him at all on the way ? 

A. He and Milton Watson, I think, were riding before, and I was 
rather behind. 

Q. You knew him perfectly well ? 

A. Yes, sir; I knew him. 

Q. Perfectly certain of it? 

A. I was certain that he was the man that left the house with me. 

Q. Where did he stop ? 

A. He stopped at Milton Watson's ; his family was down the same 
night. 

Q. How long were you out that night ? 

A. I was out nearly all night. 

Q. Left home at what time ? 

A. About nine o'clock. 

Q. Returned when ? 

A. Returned about four in the morning, I think. 

Q,. Did John Mitchell go with the crowd all tho way through ? 



485 

A. 'So far as I know, lie did, sir; I didn't see him with liis disguise off; 
don't know any more than what they tohl me at the ferry. 

Q, Did you hear his voice that night ? 

A. I think I did, sir. I cannot say positively that I did ; but it was 
told me. I don't recollect whether we had any conversation or not. 

Q. He was the Chief of the Klan ? 

A. Said to be, sir; yes, sir, I saw him when he was elected chief of the 
Klan. 

Q. Where was that? 

A. In the old field, near Mrs. Wright's brick house. 

Q. When? 

A. I don't recollect the date ; it was before Christmas. 

Q. How long before Christmas ? 

A. It was not very long before Christmas. 

Q. How many members were there? 

A, I cannot tell you ; there were some seven or eight, or may be 
more. 

Q. Was there an election held? 

A. Yes, sir. 

Q. And he was elected chief? 

A. He was elected ; there was two men running for chief, and Cap- 
tain INIitcheli was elected. 

Q. How long did he continue chief of that Klan ? 

A. I don't know, sir; through the winter, I suppose. I never saw him 
on Bjay other raid than that. I saw him at the meeting at Barkley Hill, 
as Mr. Gunn stated. 

Q. When .was that ? 

A. I don't recollect the date. 

Q. What was that meeting for ? 

A. Well, sir, it was told to me that it was to whip or kill Bill Kell. 
The evening before, sir, I had a convevsation with William Kell's bro- 
ther, and I was talking to him, and I had told him I had warning to go 
on a raid on his brother, and I wanted him to go with me to sympathize 
for him. I found out afterwards that Mr. Kell had not belonged to the 
Ku Klux ; that he had got into some of the secrets ; but he gave me the 
signs, and I returned them. I heard it rumored in the meeting that it 
was broke up by me and Mr. Kell being there. 

Q. What did you understand they were going to kill Bill Kell for ? 

A. About politics. 

Q. What politics ? 

A. Radical. 

Q. What was his position in reference to the Radical party? 

A. He was a great leader in the Union League — said to be. 



486 

Q. And lie was to be killed for that ? 

A. I suppose so — killed or whii)ped. I heard threats made about 
Hugh Kell's beiug there. Edward Leach told me, aud Madison Smart 
told me, that I had better tell Hugh Kell to get into the order ; if I 
didn't, both of us were in danger. 

Q. Were those gentlemen members of the order, aud present that 
night ? 

A. Yes, sir ; so far as I know, they were. 

Q,. Did Hugh Kell go into the order 1 

A. After that, he went to Squire Sara Brown's son — I don't recollect 
whether it was Chambers or Pete Brown — and got him into the organi- 
zation, and he came down with Mr. Brown to Watson's to let the mem- 
bers know that he belonged to the order. 

Q. You saw him there ? 

A. I didn't see him thei-e, but Mr. Watson told me afterward that 
Kell was all right. 

Q,. That wasn't the question. That was Milton Watson ? 

A. Yes, sir. 

Q. Is he the man you have spoken, of as being on that raid ? 

A. Yes, sir. 

Q. Now, your second raid ? 

A. The second raid, we met in the old field below Dr. Whitesides' 
house. 

Q. Who were present ? 

A. There was a good many; I think there was to the rise of twenty; 
may be not so many. 

Q. Name as many as you can ? 

A. Julius Howe, Geo. Leach, Jeff. Smith, Joseph Mitchell, Joseph 
Smith, Harris Wiley, Ches. McKinncy, Gaffney, Murphy, Porter, and 
several others that met there ; some had on disguises when I got there 
and some none, and waited for Howe aud Joseph Mitchell to bring the 
disguises after they had all dressed. There was no disguise for Harris 
Wiley, and he went home. We went to Dr. Whitesides' house and saw 
Whitesides and his family standing on the piazza. 

Q. Did you speak to him ? 

A. No, sir. 

Q. Did be join the Klan that night ? 

A. He did not. 

Q. Go on ? 

A. Went there and stopped at Mrs. W^^tson's for some purpose, I don't 
know what ; they did not do anything. They went to INIr. Moore's 
quarter; there they got a double barrel shot gun, aud taken it out aud 
broke it. 



487 

Q,. From whom did they take it ? 

A. From a colored man. I don't know his name. 

Q. Old or young colored man ? 

A. I didn't see the man. 

Q. Why did they take it? 

A. I don't know, sir. I heard no reasons. Went, then, to Mr. The. 
Byas' ; they did not do anything ; they were hunting for a boy by the 
name of Alf Cassiday. 

Q. Why did they hunt for him ? 

A. They went, and some broke down the doors, and some opened the 
doors for tliem, and went in and got lights and looked over the house. 

Q. Did they do anything to the women ? 

A. No, sir ; but they searched the house and didn't find any one. 

Q. What did they propose to do with him ? 

A. I heard no proposals at all. 

Q. What were they going to visit him for ? 

A. I don't know, sir. 

Q. Go on. 

A. They went down, then, to Chancellor Chambers', where they called 
on an old man and got an Enfield rifle. I think it had been cut in 
two. 

Q. Who was the colored man ? 

A. I don't know him. 

Q. Did they intend nothing with him ? 

A. They made him give up his gun ; also made hira break it him- 
self. 

Q. AVliat did they say to him ? 

A. I don't recollect ; I did not hear the conversation. 

Q. They had a conversation with him ? 

A. I suppose so. 

Q. How long did they stay with him ? 

A. Not more than ten or fifteen minutes. 

Q. What next ? 

A. They Avent, then, on down to (I don't know whether it was The. or 
Edward Byas' place) where Adolphus Moore lived, and another colored 
man there, and they taken both of them out and whipped them. 

Q. Do you know their names ? 

A. Ond was named Adolphus Moore, and I don't know the other's. 

The Court. Tell me, exactly, how they did it ? The first and then the 
second. 

A. They first went to Adolphus Moore's house. He told them that 
he was sick, and he did not feel much like going out, or something to 
that amount ; and they took him out, any how, into the yard ; I heard 



488 

some remarks made on him about swearing agaiust Ive Leach and 
George, something that occurred in 1868, some Ku Kluxing that was 
done then. 

Q. Now, what did they say to him ? 

A. They told him never to swear against a white man again. 

Q. What else? 

A. Don't recollect what they said. 

Q. Did they talk to him about his politics ? 

A. I think they did. 

Q,. Can you remember anything about it ? 

A. I cannot. 

Q. You remember that something was said ? 

A. Yes, sir ; it was generally done. 

Q. What did they do to him ? 

A. They whipped him about one hundred and fifty lashes with a 
hickory. 

Q. What did they do to him then ? 

A. I don't recollect. 

Q. Let him go? 

A. Let him go. 

The Court. What condition did this leave those people in — could 
they walk ? 

A. Yes, sir ; this boy could. 

The Court. Did you see his back ? 

A. I did not see it. 

Q. Did they whip him on his bare back? 

A. Yes, sir ; they made him strip off his shirt. 

Q. Make him lie down on the ground? 

A. No, sir; he stood up. 

Q. Did anybody hold him ? 

A. lie stood as still as he could stand. 

Q. The crowd circulated around ? 

A. Yes, sir ; they were generally crowded around. 

Q. When you whipped a man, the crowd stood around ? 

A. Yes, sir ; so thick that he could not escape. 

Q. Now tell us the circumstances about the other — how they found 
him and whipped him? 

A. They found him in bed, and they taken him out — I think some of 
his folks opened the door — and they gave him about the same number of 
lashes, with hickories. 

Q. Where was he ? 

A. Right in front of his door, in his yra'd. 

Q. Did the crowd circle around him ? 



489 

A. Yes, sir. 

Q. How many whipped him at a time? 

A. I don't recollect ; two or three — three or four, may be. 

Q. What did they say to him ? 

A. I don't recollect what they did say to him. 

Q. Do you recollect whether they talked to him about his politics ? 

A. I don't know, sir ; I don't recollect. 

Q. What was his condition when you got through whipping him ? 

A. About like the other; gave them both about the same. 

Q. What did they do with hira ? 

A. Told him to get up and behave himself, I think. 

The Court. Where was his family ? 

A. In his home. 

Q. Within hearing ? 

A. Yes, sir ; it was not more than ten paces from his house. 

Q. Did he cry ? 

A. Yes, sir ; he begged. 

Q. Where else did you go to ? 

A. Went, then, down past Edward Byers' ; there they joined part of 
another Klan, said to be Will Johnson's — the Eattlesuake. 

Q. How many in that Klan ? 

A. Seven or eight. 

Q. Who was in command ? 

A. Said to be Will Johnson. 
' Q,. Mounted, or not ? 

A. Yes, sir ; mounted and disguised, and some had pistols and some 
had guns. 

Q. Where did you go then ? 

A. Went, then, down to Mrs. Stinson's ; and they whipped this boy, 
Sam Moss, because they had heard he had made some threats. 

Q,. What kind of threats ? 

A. That he allowed to lie with his axe at his door, and the first Ku 
Klux that came in, he allowed to kill him. They went and knocked 
down his door, and called him out and whipped him a little ; didn't hurt 
him, though. 

Q. What conversation did they have ? 

A. Told him never to make no more threats. 

Q. Did he promise ? 

A. He promised he would not. 

Q. Did they repeat to him the threats ? 

A. I think they did. 

Q. Did he admit them or deny them ? 

A. He denied them. 



490 

Q. Talked to him about anything else ? 

A. I don't think they did. 

Q. Where did you go next ? 

A. Went, then, to the Nangle place. Tliey whipped a couple there — 
one named Aleck Leach, and one named Henry Moss. 

Q. State all the particulars. 

A. They went to Aleck's house first. He was crippled in one foot, and 
they made him walk up to Henry Moss' house, and got them both, and 
took them up to the old field, and whipped them pretty severe, with 
hickories and cowhides. 

Q. How many lashes did they give Aleck ? 

A. I suppose one hundred lashes. 

Q. How many whipped him at a time ? 

A. One and two at a time, I think. 

Q. Did they circle around him ? 

A. Yes, sir ; all around him. 

Q. His clothes off? 

A. His shirt off, sir, and the whipping was upon his bare back. 

Q. Has Aleck Leach since been killed ? 

A. Yes, sir ; I heard he had. 

Q. By the Klan ? 

A. I don't know who killed him. 

Q. How long after that was he killed? 

A. I don't recollect. This was on the 29th of June, as well as I can 
recollect. 

Q. Do you know what he was killed for ? 

A. No, sir; I do not. 

Q. "Were you, on this occasion, in pursuit of your usual business of the 
Klan? 

A. Yes, sir; that was generally supjjosed to be the usual business ; 
that was my understanding. 

Q. Did they talk to him about his politics ? 

A. I think they did — told him he must not be a Radical any more. 

Q. Did they use the word " voting ? " 

A. I think they did, sir. 

Q. What did they say about voting? 

A. Told him not to vote the Radical ticket any more. 

Q. Now, about the other man ? 

A. Well, I don't recollect, sir, what they said. 

Q. Did they whip him the same Avay ? 

A. Yes, sir ; but not so severe. 

Q. Did you say what his name was ? 

A. Henry Moss. 



491 

Q. Whip one right after the other ? 

A. Whipped them both about the same time. 

Q. Two whipping parties ? 

A. Yes, sir, 

Q. You didn't hear what they said to him ? 

A. No, sir ; I didn't pay any attention. 

Q. What did you do next ? 

A. Went on then to Wilson's, a colored man. 

Q. What did you do with him? 

A. They went into his house. 

Q. How did you get in ? 

A. I think some of them broke the door down, or kicked it open and 
found him in there. 

Q. Who brought him out, or how was he brought out ? 

A. I don't recollect, but I think there was two or three men ahold of 
him and brought him out ; may be, more. 
• Q. What did they do with him ? 

A. They carried him out in the yard and whipped him a little, and 
made him give the League signs. 

Q. Talked to him about his politics ? 

A. Told him he must leave the League meetings alone and not vote 
the Radical ticket any more. I don't know whether they succeeded in 
getting the League signs or not ; but I don't think they did ; when the 
party dispersed. It Avas said that the other Klan whipped him severe. 
I heard Mr. Knee say that Will Johnson came very near killing this boy. 
He said it was all they could do to keep him from killing him. 

Q. What time did you start out that night, and what time did you re- 
turn home ? 

A. We started away from the old field about 9 o'clock, I suppose, and 
I returned home about 4 o'clock in the morning, or a little after. 

Q,. That was considered a good night's work ? 

A. Yes, sir; they went on then below Wilson's, on the same road, after 
a boy by the name of John Thompson, usually called ; (you may have 
his name different) ; and they did not find him ; that Mr. Wilson was in 
the House. His wife had been confined that evening at 5 o'clock, and 
Mr. Wilson was there — that was Wm. Wilson, a white man. I heard 
shooting down at his house, and run down there ; and they had sur- 
rounded his house when I got there, and I suppose that they had killed 
his dog (I heard afterwards that the dog was killed), and they were in 
the act of going into the room where Mrs. Wilson was, and me and Will 
Leach kept them from going in. Harvey Hamwright, a step-son of Mr. 
Wilson's, begged them not to go in on his mother, and they told him to 
bring him out. They brought him out, and I think he stood on the 



492 

second or third step, and they took him — I think "Will Johnson did — 
and tokl him he was a damned big fine Radical — he was mighty nigh 
fat enough to make soap grease. 

Q. Did they talk about his politics? 

A. Yes, sir ; they told him to let the Union League alone, and also 
told him if there was any more burning done in ten miles of his 
house, they allowed to take his life. 

Q. What did he say to that? 

A. I don't know what he said ; he didn't have much to say, no 
way. 

Q,. You were acquainted with him ? 

A. I am personally acquainted with him. 

Q. H(^w long have you known him? 

A. Ever since the war. They dispersed then, and the " Rattlesnakes" 
went one way, and the " Tigers " went the other. They gave them the 
name of " Tigers " that night. On the other side of Bullock's Creek 
they took off their disguises. I think Joseph Mitchell took the disguised 
and put them in a sack. 

Q. Who is he ? 

A, Son of Captain John W. Mitchell. 

Q. Son of the prisoner ? 

A. Yes, sir. 

Q. Who commanded your Klan that night ? 

A. Julius Hovv'e. When they joined the two Klans together, he com- 
manded. 

Q. How do they determine who is to command when two Klaus come 
together ? 

A. I don't know how they determine that thing. 

Q. Is there any ranking of the Chiefs ? 

A. I don't think there is. 

Q. What next ? 

A. We went home then. 

Q. These were the only two raids you have been on ? 

A. The only two. I was in two or three meetings ; in the meeting on 
Barkly Hill, to go on Bill Kell. 

Q. Was Dr. Whitesides at that meeting ? 

A. No, sir ; he was not. 

Q. On what occasions have you seen Dr. Whitesides with the Klan ? 

A. I never saw him any time only the one time ; I and him had a 
conversation after that, and he said it was one of the most outrageous 
things in the country. 

Q. What was? 

A. This Ku Klux Klan — it was running all his hands off, and he 



493 

would be obliged to suffer if they didn't stop it. He said he was op- 
posed to it. 

Q. Did you talk to him about being on that raid? 

A. Yes, sir, 

Q. What did he say? 

A. He didn't have much to say about it. I suppose it was his first 
raid, and he was like a good many others, disgusted with it. 

Q. Have you had any conversation with him since he has been ar- 
rested ? 

A. Yes, sir ; I had a conversation with him in prison, in Yorkville ; 
he sent to me to conie on the third floor, where he was, by Sergeant Corbin, 
that he wanted to see me ; and he said that I could let him out of that 
thing very easy, if I would do it ; and it passed off that way. 

Q. What did you tell him ? 

A. I don't recollect what I told him ; anyhow, in a few days after 
that, Dr. Whitesides sent my cousin Macarchin down on my floor, and 
said that he would give me twenty-five dollars if I would go and let him 
out of it. 

Q. Who said that to you ? 

A. My cousin. 

[Objection. Objection sustained.] 

Q. Did you go and see him ? 

A. No, sir ; not after that — only as I came out of prison. 

Q. When was that ? 

A. On the 27th of last month. 

Q. What conversation did you have then ? 

A. He hollered to me, and told me to go and fix that thing. 

Q. What thing ? 

A. The thing that he offered me — twenty-five dollars. 

[Objected to.] 

Q. AVhere was he when he hallooed ? 

A. He was in prison, and I had been released. 

Q. How were you released ? 

A. On bail, sir. I returned home that night, and came back to York- 
ville on Saturday, and Squire Clawson sent word for me to come up to 
his office, and asked me if there was not a misunderstanding between me 
and Dr. Whitesides. I told him there was none, and he said that was all 
the .business he had with me ; and, also, Major Hart sent for me to come 
to his office, and I went, but I don't recollect the question he asked 
me. 

Q. Anything about Dr. Whitesides ? 

A. No, sir ; I think not. 



494 
Cross Examination by Mr. Wilson. 

Q. Did you ever state, while in the prison, in the presence of several of 
the prisoner-s, (whom I will name,) that you were satisfied that you were 
mistaken in including Dr. Whitesides' name among those that went on 
the raid that night, and that you intended to go to Col. Merrill and cor- 
rect the mistake ? 

A. I did not, sir. 

Q. Did you, while you were in jail, befoi'e you were released, mention 
it in the presence of John Miller, of W. C. Whitesides, of Robert Rig- 
gings, of Hayes Mitchell and John Mitchell ? 

A. I did not, sir. 

Q. Did you, when Dr. Whitesides called to you, as you have just 
stated, to go and fix that thing — did you say, in the presence of John 
Miller and of W. C. Whitesides, or in their hearing, " I will go at once 
and correct it ?" 

A. Yes, sir ; but you understand my meaning about this. 

Q. Did you say, I will go to Major Merrill at once and correct it ? 

A. I stated I was ordered to report to Major Merrill, and I would go 
at once. 

Q. That was your reply to the question ; do you remember using the 
words : " and correct the mistake ?" 

A. I remember using the words that I was going to Major Merrill's 
headquarters. 

Q. Did you use the words : " correct the mistake ?" 

A. I don't know whether I did or not. 

Cross Examination by Mr. Mellon. 

Q. On what night did this raid upon Charles Leach occur ? 

A. It was on the ninth of January. 

Q. Of the j^resent year ? 

A. I think so. 

Q'. Do you recollect what day of the week it was ? 

A. I cannot say. 

Q. Do you recollect what day of the week the first of January 
come on ? 

A. I cannot ; I was only told since I came here, that it was on the 9th 
of January. ' 

Q. Do you recollect what day Christmas was, last year ? 

A. On the twenty-fifth day of December. 

Q. On Sunday or Monday ? 

A. On Sunday. 



495 

Q. Then the ninth was on Monday. "Where did you see Mitchell on 
that night ? 

A. At Howell's Ferry. 

Q. You say that when you were at Howell's Ferry you saw John 
Mitchell ? 

A. Said to be him ; he was in disguise, as I said before. 

Q. I have understood you to say, however, that, as far as you at pres- 
ent recollect, you had no conversation with him ? 

A. I don't recollect having any, sir. 

Q. You are certain, now, of the night when this raid was on Charles 
Leach ? 

A. I am not certain, I have only a boy's word of it that was whipped. 

Q,. Do you certainly know that on that sanle night Press Holmes and 
Jerry Thompson and Charles Good and Amos Howell were whipped i* 

A. Yes, sir, I do ; on the same night. 

Q. When did you join this Klau? 

A. I joined before Christmas. 

Q. Mitchell's Klan, you mean? You have not spoken of any other. 

A. I joined a different Klan, sir; and then there was a meeting, when 
Captain Mitchell was elected Chief. 

Q. That was before Christmas ? 

A. It was before Christmas, sir, as well as I recollect. 

TESTIMONY OF HENRY LATHA:M. 

Henry Latham, colored, was the next witness called for the prose- 
cution. He was duly sworn and testified as follows : 

Direct Examination by Mr. Corbiii. 

Q. Where do you live? 

A. At Mr, William Shearer's plantation I was living. 

Q. In York County ? 

A. Yes, sir. 

Q. Did the Ku Klux Klan ever visit you? 

A. Yes, sir. 

Q. When was it? 

A. It was before cold weather got done — before we planted corn. 

Q. Some time last winter? 

A. Some time in the winter, 

Q. Tell the jury all about it? 

A. I heard them before they found me, down at Mr. Ramsay's, and 
I tried to see if I could escape them ; they was shooting down there, 
and I thought I would try to dodge them. I couldn't get up well, 



496 

ou account of the rheumatism ; but they seed me ; they was too smart 
for me. I went out and watched by a hickory tree ; and when I got 
tired of watching, I mashed up some old wood and took it in, and 
they coming on me. 

Q. Who came on you ? 

A. Mr. Shearer. 

Q. Who else? 

A. There was all the Shearers came in ; Mr. Riggings, I don't think 
that he came in ; but his horse was there when they sot dovm with 
me. 

Q. How many Avere there? 

A. Seven in the crowd. 

Q. All come in. 

A. No, sir ; they didn't ; but — 

Q. Tell us what they did to you ? 

A. They came in ; they cussed me. 

Q. Tell us what they said ? 

A. The}'^ said: "God damn you, who are you?" I says: "Henry 
Latham, sir." "Who is he?" I says: "Henry Latham, sir;" then I 
looked at one at the window, and saw his red eye, and he jobbed his pis- 
tol in my face, and says : " Who are you ?" and 1 told him " Henry 
Latham, sir," and acted as well as I could to keep them from killing me. 
Robert Riggings told me he was going to make me a good old Democrat ; 
that was the first of it. Mr. Riggings said he was going to make me a 
good old Democrat. I says : " You can't do it." He says : " Well, 
you'll see." I says : " How will you do it ?" He says : " I am going to 
fetch a crowd and shoot in your house, and make you a good old Demo- 
crat." I says : " No ; don't do that, Mr. Riggings." He says : " I will 
do it some other way." I says: "How?" "Never mind, you'll see." 

That was along in the middle of the week, before they whipped me. 

Q. When was it that they came to see you ? 

A. Saturday night; and when I heard them, I knoAved I would catch 
it. I wasn't able to run, and I went and got behind a tree. Well, it 
was too cold ; I couldn't layout at night, and I thought I would dodge back 
into the house and be easy, and sit down and mash up the old wood and 
put it on, and just as I put the last stick on, he jobbed me with his pis- 
tol, and saj's : " Who are you ? God damn you, who are you ?" I says : 
" Henry Latham, sir." " God damn you, come out of there." "Yes, sir," 
and I followed him up and got to the fence, and before I got to the fence, 
he said " he would cut my God damn throat." I thought now if I 
prayed a little bit, I would'nt be uneasy. When I throwed ray leg up 
to get over the fence, the pain hurt me so I hollered. " What ails you, 
God damn you ?" I told him that it was the rheumatism. " Well," he 



^ 497 

says, " God damn you, come over here, I will take that out of you," and 
kicked me and turned my bone wrong in here [indicating the spine]. 

Q,. How many times did they kick you ? 

A. I cannot tell. They kicked me and told me to run ; well, I tried 
to run all I could, but a man full of pains can't run much ; I wouldn't 
speak of them, no way, out of the way ; I just grunted when they kicked 
me. 

Q What did they do with you up the road ? 

A. They beat me with poles about that thick [pointing to his wrist]. 
They had long oues, and hit me in the same place where they kicked 
me. 

Q. How many times did they strike you ? 

A. I don't reckon more than six or seven times apiece; five of them 
hit me, but there was seven in the crowd ; they didn't give me but, I 
don't think, more than six or seven apiece; they asked me if I would 
ever vote another Radical ticket, and I told them no, sir, if that was the 
way they did, I wouldn't ever no more; they asked me if I was a League 
man ; " Well show me a League sign, God damn you;" I catched myself 
right here (the left lappel of the coat.) Mr. Kell, he was a Radical 
man ; he put us all into the League ; and they said, " God damn you, 
what did you join it for" I said I didn't know there was any harm in 
it. " Well, God damn him, give him hell;" and then they begun. 

Q,. After they got done whipping you how did you feel? 

A. I felt very bad. 

Q,. What injury did they do to your spine? 

A. They turned the bones wrong side out; well, I never got over it; 
I don't know as I ever will ; they kicked the bones wrong and injured 
the bone ; they told me to run when I started back, and I went to get 
my coat, and they kicked me in the same place again, and I catched my 
coat in my fingers and huug on to it and run with it, and while I was 
running they run the horses up to keep me from knowing the horses ; 
Dock Shearer's horse, ]3ob Rigging's horse — I knowed the horses; I had 
plowed Bob Rigging's horse. 

Q. Did you go home? 

A. Yes, sir; they told me, "God damn you, go to the house." When I 
started to pick up my coat, they said run, and while I was running, they 
run the horses. 

The defense waived cross examination. 

TESTIMONY OF JERRY CLOWNEY. 

Jerry Clowney, colored, was the next witness called for the prosecu- 
tion; he was duly sworn, and testified as follows: 

32 



498 

Direct Examination hy Mr. Corhin. 

Q. Where do you liv' e ? 

A. I live in Yorkville, 

Q. How long have you lived there ? 

A. Ever since the first of March. 

Q. Where did you live prior to the first of March ? 

A. Lived on Judge Beaty's plantation. 

Q. How far from Yorkville ? 

A. Four miles. 

Q.. Now tell the Court and jury whether the Ku Khix Klan visited 
you, and if so, what they did to you ; tell us all about it? 

A. They came to my house on the 25th of January, at night. 

Q. What time of night? 

A. About one o'clock, between twelve and one ; I think it was about 
one. 

Q. Did they have disguises on or not ? 

A. Yes, sir. 

The Court, Let him tell his story. 

Q. Tell your own story in your own way ? 

A. I don't know what for, or how they came to the house, for I wag 
asleep, sound ; after a while, in my sleep, I heard a monstrous noise all 
around the house ; I rose up in bed ; what is this, says I, old woman, what 
is this? She bouno*'d up. Oh, I don't know, says I, I don't know what 
it is neither. They went on knocking, and they had a song that they 
sung; it had but mighty few words: " Ho^ man, home to-night? Ho, 
man, home to-night! Ho, man, home to-night!" [Laughter.] You 
laugh so much, I can't tell you. 

The Court. Go on ; never mind acting it ovvt. 

The witness. I lit out of bed (m the floor — they was still a knocking 
and hoileriog — I had one little loose plank in the middle of the floor — a 
little cellar that I had — says I, "old woman, these are keeping," and I 
raised up the plank a little piece, and it struck me immediately that my 
sills was close to the ground and I couldn't crawl out under — [hat was 
my aim — I dropped the plank back again and raised it up, but then as 
soon as I raised it up, there was one of the men outside had a board — I 
had a board nailed across the crack and he had it punched oft"; the board 
dropped inside, and he peeped in and saw me — the moon was shining — • 
and he run the muzzle of his gun through the boards and says, *' God 
damn his soul, I see him" — says another, "if you see him, shoot him 
down." Oh, no, I says, don't shoot me. "Well, then, open the door, 
God damned quick." I opened the door. Here come in the old devil, 
shaking his horns, and walked up to me. "God damn your soul; you 



499 

have got a gi,in here — you damned rascal you." Says I, yes, sir. ""Where 
is 3'our gun ?" Says I, there it is on the wall. Two jumped and grabbed 
the gun at once, and carried it out of the door. As soon asever they got out 
into the yard with it, the Captain was standing by rae with his horns — 
I call him Captain, because he had his horns on his head. "Now, God 
damn your soul, I ^Yant you to tell me, you God dam;ied rascal, what is 
you doing with a giin, here." I wasn't doing much Avith it. " What lit- 
tle Avas you doing with it, you damned rascal ?" Says I, I belong to the 
militia, and I have been mustering a little and drilling. " Where have 
you been drilling?" D)wnat Yorkville. "I know nothing at all about 
your God d — d Yorkville." Says I, it ain't but f )ur miles from here. 
" I knoAV nothing about four miles, nor Yorkville, God d — n your soul ; 
and you have been drilling ?" Says I, yes, sir, " Well, God d — n your 
soul, I intend to drill you to-night," and he hit me — [as the witness spoke 
he fell full length on the floor.] Here is a great big scar here on my 
head yet ; he opened my skull there pretty wide ; the blood run in a 
stream like you stick a hog. He went out after he struck me that first 
lick. I was standing holding my head, the blood running on the floor, 
and a man came to the door—" Why, God d— n him, we'll have to hang 
him." Says I, no, please don't hang me. They didn't give me time to 
walk; just chucked me out of the door. The captain says, "God d — n 
you; I will show you about drilling, you d — d son of a bitch." Then 
they circled around, with me in the middle, to look at, like I -was a mon- 
key, or a babboon, or something. Then he commenced down here [indi- 
cating the legs,] and I was a jumpiiig and prancing and begging. When 
I thought they was done with me, I says, please to let me go. The cap- 
tain says, "Jerk down, God d — n the nigger; here, jump down, and I 
v;ill fix the nigger." [Here the witness lay down ;] they jerked nie on my 
face to the ground. [The audience laughed at .the ludicrous gestures of 
the witness.] Keep still ; I will get done telling it directly. They jerked 
me to the ground ; one man jumped on top of my head and another across 
my shoulders, and just had me fastened to the ground. Says I, Oh, pray ! 
Oh, master, do, if you please — " Oh, God damn you, I will fix you now." 
Then right across here [illustrating the whipping] — " God d — n you ! 
God d — n you ! God d — n you ! I will make you true to your party ! 
Let him up ! Let him ujd." The captain stretches off" then in frour, and 
all the rest followed, [illustrating their gait] all making a noise like 
Oo-oooo-o-o. There was one go-dong nigger. I wish his head was cut 
off" to-day. 

Mr. Corbin. That is no testimony. 

Witness, I hop(> it will be done! The nigger came back to me and 
caught me by the arm, " Now, my friend, you go to work and make 



500 

your living honest, and the Ku Klux will never trouble you no more — 
Oo-oo-oo," [imitating the gait.] 

Q. Well, they left you ? 

A. They left me, now, in the yard. I wasn't able to move. I staid in 
the yard until they went to Uncle Isam Moss' house. It wasn't over a 
hundred and fifty yards; it was so we could stand in our doors and talk 
to one another. Directly I heard them at Isam's house like they had 
been to mine ; the same knocking and hollering, and " Ho, man ! you 
home to-night !" I heard when the door flew open, and they didn't make 
much noise after the door was open. Directly I heard shooting right in 
Isam's yard. 
' Q. What did you do finally, yourself? Did you get up? 

A. Yes, sir ; I didn't get up ; I couldn't get up. 

Q. How did you get up ? 

A. My wife came to me and caught me by my hand, and dragged me 
into the house. 

Q. How far were you from the house when they pounded you ? 

A. Right at the door. 

Q. Your wife right there ? 

A. She was standing in the door all the time begging and crying, and 
screaming the whole time. 

Q. Did they do anything to her? 

A. No, sir ; nothing. 

Q,. After they let you go, you went into the house ? 

A. She helped me in the house, and went in. 

Q,. How long were you confined to your bed ? 

A. Three weeks, and couldn't leave the house ; but it looked like my 
backbone here was unjointed, and my head was cut very deep, and Dr. 
Johnson came on Sunday morning and dressed my head. 

Q. Was that on Saturday night ? 

A. Yes, sir ; on Saturday night. 

Q. About what time last winter was this ? 

A. It was the 25th of January. 

Q. Were you a voter in York County ? 

A. Yes, sir ; I voted there often ; voted every time there has been an 
election yet. 

Q. AVhat ticket did you vote ? 

A. I voted the Republican ticket. 

Q,. At the last election ? 

A. Yes, sir. 

Q. Did you vote for Mr. Wallace? 

A. Yes, sir ; and all the rest. 

Q. What did the other side call your ticket? 



501 

A. They called our tickets Republican tickets.- 
Q. Didn't they call it the Radical ticket too ? 
A. Yes, sir; they called it first one way and then another. 
Q. Did you know any of the party that night ? 

A. No, sir ; I didn't know any of them ; they was too smart for me ; 
they cut ray- head too quick. 

The defense waived cross-examination. 

TESTIBIONY OF HARRIET SIMRIL. 

Harriet Simril (colored) was called as a witness for the prosecution, 
and, being duly sworn, testified as follows: 

Q. Who is your husband ? 

A. Sam Simmons. 

Q. Where do you live ? 

A. At Clay Hill, in York County. 

Q. How long have you lived there ? 

A. A good many years. 

Q. Has your husband lived there a good many years? 

A. Yes, sir. 

Q. Did he vote at the last election ? 

A. Yes, sir. ' 

Q,. Do you know what politics he is ? 

A. He is a Radical. 

Q,. Did the Ku Klux ever visit your house? 

A. Yes, sir ; I think along in the spring. 

Q. About what time in the spring? 

A. I cannot tell you exactly. 

Q,. Have they been there more than once ? 

A. Yes, sir; they came on him three times. 

Q. Now tell the jury what they did each time? 

A. The first time they came ray old man was at home ; they hollered 
out, " Open the door,'' and he got up and opened the door; they asked 
him what he had in his hand ; he told them the door-pin ; they told him 
to come out, and he came out; these two men that came in, they came in, 
and w-anted me to make up a light ; the light wasn't made up very good, 
and they stuck matches to a piue stick, and looked about to see if they 
could see anything ; they never said anything, and these young men 
walked up, and they took my old man out after so long, and they wanted 
him to join this Democratic ticket ; and, after that, they went a i:)iece 
above the house, and hit him about five cuts with the cowhide. 

Q. Do you know whether he promised to be a Democrat or not? 

A. He told them he would rather quit all politics, if that was the way 
they was going to do him. 



502 

Q. "What did they do to you? 

A. That is the second time they came. They came back, after the 
first time, ou Sunday uight, after my old mau again, and this second time 
the crowd was bigger. 

Q. Did they call for your old man ? 

A. Yes, sir ; they called for him, and I told them 'he wasn't here ; then 
they argued me don'u, and told me he was here; I told them no, sir, he 
wasn't here ; they asked me where was niy old man ; I told them I 
couldn't tell ; when he went away he didn't tell me where he. was going ; 
they searched about in the "house a long time, and staid with me an hour 
that time ; searched about a long time, and made me make up a light ; 
and after I got the light made up, then they began to search again, and 
question me again about fiiie old man, and I told them I didn't know 
where my old man had gone. 

Q. What did they do to you ? 

A. Well, they were spitting in my face, and throwing dirt in my eyes; 
and, when thej'^ made me blind, they burstedopen my cupboard; I had 
five pies in my cupboard, and they eat all my pies up, and then took two 
pieces of meat ; then they made me blow up the light again, cursing me ; 
and after awdiile they took me out of doors, and told me all they wanted 
was my old man to join the Democratic ticket ; if he joined the Demo- 
cratic ticket, they would have no more to do with him ; and after they 
had got me out of doors, they dragged me into the big road, and they 
ravished me out there. 

Q. How many o'f them ? 

A. There was three ? 

Q. One right after the other ? 

A. Yes, sir. 

Q. Threw you down on the ground ? 

A. Yes, sir; they throvved me down. 

Q. Do you know who the men were who ravished you ? 

A. Yes, sir ; can tell who the men were ; there were dies. McCollum, 
Tom McCollum and this big Jim Harper. 

Q. Who ravished you first? 

A. Tom McCollum grabbed me, first, by the arm. 

Q. What next? 

A. All nasty talk they put out of their mouths. [Witness here de- 
tailed the conversation on the part of her tormentors, but it was of too 
obscene a nature to permit of publication.] 

Q. What was your condition when they left you? How did you 
feel ? 

A. After they got done with me I had no sense for a long time. I 
laid there — I don't know how long. 



503 

Q. Did you get up tbat night? 

A. Yes, sir ; and walked back to the house again. 

Q. Have the JCu Klux ever come to you again ? 

A. No, sir ; they never came' back no more after that ; they came 
back, too, but I was never inside the house. 

Q. Did ycjur husband lay out at night ? 

A. Yes, sir; and I did, tjj — took my children, and when it rained 
thunder and lightning. 

Q. When they came back, what did they do ? 

A. When they came back, I wasn't there ; I went there the next 
morning, and there was a burnt chunk down in the corner. 

Q,. Did it burn the house any ? 

A, No, sir; it didn't burn it— they done that to scare my old man; 
and after that my old man and me drowned our fire out every night, and' 
went away. 

Q. Did they come there any more ? 

A. They didn't come any more, at all ; the house was burned the next 
morning when I went to it. 

Q. Did they burn your house down? 

A. Yes, sir ; I don't knovv who burnt it down, but the next morning 
when I went to. ray house it was in ashes. ^ 

Q. Why did you lay out ? 

A. We laid out in the woods. 

The Court. Why did you lay out ? 

A. We went away up towards the river. 

Q. To get out of the way of the Ku Klux ? 

A. Yes, sir ; I got out of the way of them. 

Q. That is what you went for ? 

A. Yes, sir. 

Q. Huw long did you and your old man lay out? 

A. I think we laid out for four nights. Yes; we lay out four nights ; 
I cannot tell, exactly, how many nights, but he lay out a long time be- 
fore I lay out. 

Q. Did those Ku Klux have on masks and gowns? 

A. Yes, sir ; they had on gowns, and they had on false caps on their 
faces. 

The defense waived cross-examination. 

TESTIMONY OF SHAFFER BOWENS. 

Q. Where do you live ? 

A. I live in Cleveland, N. C. 

Q. Have you ever lived in York County ? 



504 

A. Yes, sir; two years ago I lived in York County — in the upper 
edge of the County. 

Q. Did you ever join the Ku Klux Klau ? 

A. Yes, sir. 

Q. Where? 

A. In North Carolina. 

Q. What time in 1867? 

A. I think it's about this time of the year — some time in Decem- 
ber. 

Q. Who initiated you, and what was the mode of initiation ? 

A. Frank Ellis initiated me ; made me kneel down on my knees, blind- 
folded rae, and repeated the oath to me, and I said it over after him. 

Q. Can you tell us the substance of the oath ? 

A. I cannot, sir. 

Q. Was it at a meeting of the Klau ? 

A. Yes, sir. , 

Q. How many were present ? 

A. I cannot tell, sir ; there was ten or fifteen. 

Q. Now, can you tell us what the purposes of the order were ? 

A. My understanding was, to advance the Conservative party and put 
down ihe Radical party. 

Q. How were they to do it ? 

A. By killing and whipping, and crowding out men from the ballot 
boxes. 

Q. Have you been a member of the Klan ever since ? 

A. Yes, sir. 

Q. Have you operated with the Klan ? 

A. I have been on raids with them. 

Q. Tell us something about the raids you were on ? 

A. The first raid I was on was on the 2d of Decern oer. 

Q. Tell us all about it? 

A. A year ago now, a week or ten days before the night was set for 
him to be killed, Ned Turner came over to the shop where I was at work, 
and told me that they was going to make a raid on Rountree. 

Q,. He lived in York County? 

A. Yes, sir, he did ; and it was then rumored through the country that 
they was to meet the next Friday night, or next Friday night week, at 
Moore's Bridge, on Buffalo Creek. Well, when the night came on I went 
down there; some four or five fellows there. 

Q,. Who wei-e they ? 

A. Robert Moore wa§ one, Wallace Wiley, Reuben Goforth, Asbury 
Miillinax, and others that I don't I'ecolloct ; we staid down there round 
a small fire awhile, and they kept coming in from different directions ; at 



505 

last they got sort of afraid for fear somebody would find them out there, 
and they moved further up the creek into a thicket, and built a large 
fire; then staid there, I suppose, till about 10 -o'clock; I asked them 
what they was going to do with the nigger ? they said they was going to 
kill him; I told them that I didn't think it would be well to kill him ; I 
thought it would be best to go and talk to him or whip him, if they was deter- 
mined to do something ; they swore they was going to kill him ; that was 
about 10 o'clock, I suppose ; I asked them what they were staying there 
for? they said they were waiting for some people to come from the other 
side of the river, and, about that time. Bob Moore got on his mule and 
said he was going to meet those fellows ; he went, and was gone, I sup- 
pose, two and a half or three hours, and came back, and when he came 
back, Gabriel Humphries and George Turner, and one or two others that I 
didn't know, came with him, and some of them told Moss to take charge 
of the crowd, and Moss said he didn't want to do it ; he then told Tur- 
ner for hini to take charge of the crowd, and he then hollered for them 
all to form in a line in the road and start; Turner was in front; all 
them that was riding got on their horses and started in front, and 
those that was walking went behind them ; then went to about a quarter 
of a mile of Roundtree's house and got down and hitched the horses, 
and detailed four or five fhen to stay with the horses. Turner then 
took the lead again, and hollered to the men to follow him ; went on 
till they came up to the fence, jumped over the fence, and then they 
commenced to jump over the fence, and threw three or four rails 
over to give the nigger a signal, but he didn't take it; h3 ran into 
the loft. They then went and surrounded the house, and some- 
body fired — a gun was discharged — I don't know which side fired 
the first gun. When the first gun was fired, about fifty or sev- 
enty-five guns were fired into the cracks and windows of the house. 
Turner ordered them to quit shooting. At last they got sto])|)ed. He 
then ordered somebody to burst the door down, and Jasper Sj)eneer and 
some other men, I don't know who, gathered a large rock betAveen them 
and rushed in and busted the door down. The house was a double house 
with an entry through the middle, and they busted the door down. I 
walked to the edge of the entry; they rushed into the house and couldn't 
find any one in there, and some one outside hollered. They 'all then 
ryshed out of the house, that was in there, and run around the house and 
commenced firing in the loft. I then walked into the entry, and was 
standing in front of the house!. !Mat Humphries and Elijah Ross Se- 
paugh was standing beside me ; they commenced shooting into the loft. 
Roundtree run to the edge of the loft and shot down at as in the entry. 
He hit.Sepaugh ; cut him across the breast a little and in the wrist; he 
then went back and jerked up a plank — it was a loose roof — and drop- 



506 

perl <lown through on the floor and jumped out of the window, and then 
they commeueed firing at that end of the house where he jumped oat of 
the wiudi)w. \yhen they done that, I run out and run around, and jusit 
got around, when 1 saw him fall ; I walked to him and helped him up. 
AVhen I done that, some other one of the party — I don't recollect who he 
was — walked up and took hold of him, and told him "now, damn him, 
to go back and show him where them guns was." It was reported that 
he had several guns and pistols, and some other one walked up and kicked 
him behind, and told him, "God damn him, go right on and show where 
the gnns was." He said he would do it. When they kicked him I let 
him loose; when I let him loose the other let him loose also, and he 
dropped down on his face. I think we walked some ten or twelve steps, 
to where Elijah Ross Sepaugh was standing. I walked up to him and 
seen that he was hurt in the wrist ; he said he was shot ; I walked to him 
and picked out one or two of the shot. Just as I walked up to him, 
Henry Sepaugh, Elijah Ross, Sepaugh's brother, came up, and seeing 
that he was shot, drew a long bowie knife and walked to where I left the 
nigger lying struggling. Some other of them had turned him over on 
his back, and in a few minutes after Sepaugh went back, some of thtm 
came up and said that Henry Sepaugh had cut his throat. I went back 
to him and seen that his throat was cut; some of the crowd then went 
into the house and hunted about for guns; they found a repeater outside 
that I suppose he had in his hand when he jumped out of the window. 
They couldn't find any more guns, and they started, and was standing 
down in the lane, and Somebody down in the field began hollaring to rally 
boys, for here Avas them damned Ku Klux. I suppose it was a nigger ; 
they said so, I don't know. When he commenced doing that, George 
Turner hollered back, yes, God damn you, the Ku Klux was there ; and 
about that time some one of the party from where the house was, hollered 
to leave there, it wouldn't do to stay a minute longer. I then started to 
run, and the rest f )llowed and run back to the houses, and wc all went 
together about a mile, into Mr. Duncan's lane; most of the crowd went 
there but me, and some of them went up the road as far as Moore's Mill 
on Buffalo ; and there some of the rest turned off. I went on a piece 
further, and when they all left I went on home. 

Q. Was Roundtree a colored man ? 

A. Yes, sir. 

Q. Do you know what his politics were? 

A. It was reported that he was a Radical. 

Q. Did you understand this raid, made on him, was in pursuance of 
the general purpose of the order? 
■ A. Yes, sir. 

Q. Was he dead -when you left him? 



507 

A. Yes, sir ; he was dead. 

Q. What othei raids have^ou beeu on ? 

A. One, sir ; when John Wriglit was whipped. 

Q. Wheu was that ? 

A. Sometime iu January, I think, last. 

Q. Describe it ? 

A. I was then at Lewis McSwaiu's, in York County, S. C. I was at 
work there on a mill, and it was reported to me that they was going to 
make a raid when night came on, in the cooling grounds. McSwain's 
boys asked me if I would go. I told them I didn't care, I felt tired and 
didn't care much about going ; they said they was all going to ride, and 
they would furnish me with a horse if I would go. I got on the 
horse and went about a mile from there into an old field, and waited 
there until the rest of the crowd came ; some ten or twelve men came ; 
wlien they all got on their horses and went till we got within a half a 
mile of John Moss's, and then we divided into three crowds ; each crowd 
was to go through a cabin apiece ; one was to go down to Moss's house, 
and the other to go to some other nigger houses ; the two that was 
to go to tnie negro houses, they went, and tlr^y couldn't find 
anybody; they all rushed in and met up with the crowd that 
was at Moss's house; they met and went to the houses together ; just 
as we got in sight of the houses, we seen three persons running across the 
hill ; some of them ordered them to shoot; nobody shot; went into the 
house, ordered the door to be opened,- opened the door, went in and 
searched the house ; inquired for the Wright b(>ys ; some of the Wright 
boys wasn't there; then went back to where a woman by the name of 
Skates lived in a little cabin ; they knocked the door of the cabin down. 

The Court. Any one in ? 

A. No, sir. 

Q. Was it a white woman or a colored woman ,? 

A. A white woman. 

Q. What did they break her door open for ? 

A. I don't know, sir ; they said they was going from there to Jane 
Boheliers', about 'two miles; they ran their horses from there to her 
house, or near her house, and hid the horses ; they then went down to 
the house, surrounded it, and ordered the door to be opened ; some of 
them got up and opened the door ; they went in and searched about, and 
couldn't find anybody in the house ; they then jerked up a plank of the 
floor and looked down, and there were two fellows ; they took up a plank 
and run under the floor when they heard us ; they were John Wright 
and Jake W^right ; they took them out ; and Joe Harden came in, and he 
said there was another ; jerked up another plank, and John Moss was in 
there, called Red John Moss. 



508 

Q. White or colored ? 

A. He was colored. Took him out and took him up the road ahout 
two or three hundred yards from the house ; made them pull their clothes 
off — their coats and shirts. Joe Harden then ordered some one of the 
crowd to cut twenty-five good hickories. Some of the party done it, and 
commenced whipping them. They struck Jake Wright and John Moss 
two or three licks, and they broke and run, and they got away, and Har- 
den ordered them to shoot. Somebody busted a cap, but his gun never 
went off. They then took John Wright and locked his arms around a 
sapling and tied his hands. Joe Harden then took a hickory and whip- 
ped him severely. We all tried to get him to quit whipping him, but 
couldn't do it. He then took the butt of his stick and knocked him 
down with it two or three times. When he was satisfied he turned him 
loose, made him run and shot at him as he ran. 
Q. Did he hit him 't 
A. No, sir; I don't tliink he did. 
Q. Were these grown men — all of them ? 

A. Yes, sir; I suppose they was all grown, sir. Never saw them be- 
fore that night, but they looked to be grown, then. 
Q,. Where did you go next ? 

A, They then turned and went back to the houses. I asked them 
what for? They said they hadn't got through. They was going to take 
that woman out ; and they had a pot of tar and lime, and was going to 
potir her full of it. I told them I didn't think they ought to do that. 
If they Avas going to do anything to go back and talk to lier, 
Q. Was she white or colored ? 

A. She was white ; Joe Harding said he was going to l\jive it done ; 
went back and ordered her out ; made her lie down and held up her 
clothes. 

Mr. Wilson. Has that anything to do with the indictment ? 
Mr. Cor!)in. It has directly. 

The Court. They propose to connect it, and we might as well let the 
people hear, and let the jury know what things exist about us. 

A. Made her lie down and held up her clothes ; then ordered Elijah 
Ross Sepaugh to fetch the pot of tar and told him to pour it in. 
Q. Did he obey them ? 

A. He then poured it into her, as much as he could ; and took a pad- 
dle and rubbed it on her. 
Q. Poured it in her where ? 
A. I don't like to tell. 
The Court. In her privates ? 

The witness. He poured it in her privates. They then told me to 
give her orders to leave there in three days ; I told them that I hadn't 



509 

anything to do with it, and didn't want to give any orders about it at all, 
but Mr. Harden — he was the one told me to order that — told me he was 
in charge of the crowd, and if he gave — he gave all the orders, he said,, 
he was afraid to talk any more — they would recognize his voice. I then 
told her the orders were for her to leave in three days, and get out of the 
place. They then turned and left, and scattered and went home. 

Q. What were you after those negroes for ? 

A. I don't know what they were after them for; I was about ten miles 
from home — at work on a mill. 

Q,. Do you know tha(. they had any other j^urpose than the general 
objects of the order? 

A. No, sir. 

Q. That was the understanding ? 

A. I didn't ask them what they were going to do it for ? 

Q. They hadn't any special reasons? 

A. No, sir; just the general object, sii\ 

Q. They were out as a Ku Kiux Klan ? 

A. Yes, sir. 

Q. All disguised ? 

A. No, sir ; part of them not disguised ; several of them had dis- 
guises, but some pulled them off. 

Q. Did they nave gowns on ? 

A. Some of them had. I didn't have any. 

Q. Had they arms ? 

A. Almost every one had a pistol or' gun 
. Q. Some of them rode, and some of them walked? 

A. No, sir; they wa^ all riding. 

Q. How many. in the crowd? 

A. I don't knovv, sir; there was fifteen or twenty. 

Q. Where next did you go ? 

A. Then went home from there. 

By the Court. Where is this man Harden ? 

A. He was at home the last time I heard of him. 

The Court. Has he been arrested ? 

Mr. Corbin. No, sir, he has not be^ caught yet. There is some diffi- 
culty in finding him. 

The defense waived cross examination. 

The Court adjourned, at 4 o'clock, till 11 Wednesday. 



510 

Columbia, December 20, 1871. 
Mary Robertson, alias Thompson, a witness for the prosecution, being 
.duly sworn, testified as folli)ws : 

TESTIMONY OF MAEY ROBERTSON. 

Direct Examination by Mr. Corbin. 

Q. Where do you live ? 

A. Three miles below Chester. 

Q. Where did you live formerly ? 

A. At Bullock's Creek, on Billy Wilson's plantation ; he is sometimes 
called Billy Wilson ; a big white man. 

Q. When did you leave that plantation ? 

A. On the 5rh of March, I think. 

Q,. What did you leave there for ? 

A. The Ku Klux ordered me away. 

Q. Did the Ku Klux vi.-it you there ? 

A. Yf.s, sir. 

Q. Now, tell us all about it? 

A. The first night they came there, it was on Sunday night, I heard 
them come up to the house. I went out and stood a little piece on the 
road, and then one of my little boys came along. They had asked him 
to show them where John Robertson's house was, and my little boy 
showed them the house, and they came up and bursted in the door ; then 
they asked if my husband was in ; then they gave my little baby boy two 
cuts, and told me to get a light; then they searched about the house ;. 
they asked if we had a gun. They then took the gun out of ray house — 
who took the gun, I don't know ; then they went to Jim Crosby's and got 
• his gun and broke that ; I saw them break it, myself. 

Q. Do you know who went to Jim Crosby's ? 

A. 1 was standing out in the lot. 

Q. How far is Jim Crooby's house from your's? 

A. About the length of this house. 

Q. Did they find your husband that night? 

A. No, sir; they never found Itim ; they didn't see hira that night. 
That was the first night they came. 

Q. Did you know any of the party ? 

A. I knew one Captain John Mitchell. 

Q,. Is that the man here ? 

A. Yes, sir; that is the man, [pointing to defendant.] 

Q. Did they visit you iigain?. 

A. Yes, sir. 

Q. How long was itaft^rthe first visit? 



611 

A. It was about two weeks after the first visit. 
Q. Tell us all about that ? , 

A. They did not find nie iu the house that night. I was in the back 
house that night; they came round to the door and hollowed open the 
door ; I was in ttie house when they came again ; they hollowed open 
the door, and I opened it; when they saw me they said stand back, and. 
the man held a pistol at ray breast. Said he, " damn you, make up a light ; 
where is your husband?" Said I, " he is away." " Stand back," said he, 
" until I search the house." "Come away," said he, " to the back of the 
house." I put on my shoes, and was going to put on my clothes. " No, 
damn you," said he, "come out here." I started to go over to the back of 
the house. " No," said he, " come this way." I followed him about one hun- 
dred yards, may be two hundred yards, from the house, and then said he 
" where is your husband?" I said I did not know, then he said, " I 
will make you tell a better tale than that." 
Q. Did you know him ? 

A. No, sir ; but he snapped a pistol in my face three times. Said 
he : " You had better not know" me ; lie down." " No," said I, "' I 
cannot do that." " There is no help for you," said he, "damn you, lie 
down." I said : " I don't like to." He said if I didn't, he would 
shoot my damned brains out. He stood there talking to. me, and said: 
" Are you going to lie down ?" he said ; " if you don't, I will hook you 
with this knife." Then he left me, and said : " Damn you, stay here till 
I come back." When he left me, I went to Jim Crosby's house, and 
they all went to Wilson's big house. When he came back, he said: 
" Damn you, I told you to stay here," and he cut me with a switch, and 
I thought I was cut in two. Then said he: " Walk out," and I walked 
out to the door, and whea I was just outside the door, they made me pull 
off my sack ; then they whipped me with hickory switches. There were 
four of them, and. they gave me five cuts apiece. 
Q. Did you know any of the parties ? 

A. I knew the four that whipped me: John .Mitchell and his son Jo- 
seph ; one was little Joe, and little Ed. Leach. It is he that murdered 
Joe Leach's daughter. 

Q. You say you made up a light? 
A. I did. 

Q. Did you see Captain Mitchell's face there ? 
A. I saw all their faces. 
Q. Did they have any disguises on? 

A. Tom Whitesides and Watson had white dresses and long horns, 
but they had nothing over their faces. 
Q. Do you know Dr. Whitesides well ? 
A. T do, very well; I know he married Joe Leach's daughter, and 



512 

my mother lived ou the same plantation, and I went there occasion- 
ally to see her, and I have been up at the house many times. 

Q,. How many years have you known him ? 

A. I have known him ever since he married Joe Leach's daugh- 
ter. 

Q. Was that before or since the war? 

A. Since the war. 

Q. Do you know John Mitchell well ? 

A. Yes, sir ; I have known him five years before I was free. 

Q. Is this the man, J. W. Mitchell ? 

A. Yes, sir; that is the man there, [pointing to the defendant] and his 
son, Joseph Mitchell 

Q,. Do you know the man that took you into the field ? 

A. Yes, sir ; it was Joe Leach. 

Q,. Did you know any otliers of the party ? 

A. Yes, sir; Dr. Tom Whitesides ; and Mr. Watson was another. 

Q. Is this the person you see ? 

A. Yes ; that's the one [pointing to the defendant]. 

Q. Where did you see Mr. Whitesides ? 

A. lie and Mr. Watson was in the house together. 

Q. Do you think you can be mistaken about him ? 

A. No, sir ; I cannot be mistaken, for I know him. 

Cross-Examination. 

Q,, Do you state two of them had disguises, masks and gowns? 

A. Yes, sir. 

Q. What house do you say this was you wore in ? 

A. They came into Jim Crosby's house wliile I was there, and they 
asked if Jim was there, and his wife said he was not ; then they looked 
up at the loft, and said he was not there. 

Q. Where were you sitting? 

A. I was sitting just in the fire-place. 

Q. What time was this ? 

A. It was in March. 

Q. About what time in March ? 

A. I don't know the day. 

Q. Do you say none of the rest had disguises on ? 

A. No, sir ; they had every day's dress on ; and they had pistols 
buckled around them ; Dr. Whitesides and ]\lr. Wilson had a white 
gown and a red cap, and they had horns on their heads. 

Q. How far did their head dress come over their faces? 

A. 1 don't know, exactly ; a little longer than my finger. 



513 

Q,. Do you mean over the face ? 

A. Yes, it came over the forehead ; it looked like that, but I do not 
know exactly how long. 

Q, What hour of the night was this? 

A. I reckon it was between ten and eleven o'clock. 

Q. And you say it was about the first of March ? 

A. It was on Thursday night, and I think it was about the first of 
March. 

Q. Was thie the night they whipped you ? 

A. That was the night I am talking about. 

Q. Was Dr. Whitesides' chin covered ? 

A. His face was not covered a bit. 

Q. What sort of a light was there in the house? 

A. It was a good shining light from a pine fire. 

Q. Had you any candle light ? 

A. Nothing but a big red light from the fire. 

Q. (by Mr. Melton). The first night, you say, was the night on which 
you recognized Captain Mitchell ? 

A. Yes, sir. 

Q,. What hour of the night was it? 

A. I reckon about ten or eleven o'clock. I always went to bed 
before that, but we heard a noise at the house above, and we all ran 
out and listened, and we heard the Ku Klux. 

Q. Had Dr. Whitesides any whiskers on then? 

A. I never saw him with whiskers at all. 

Q. (by Mr. Corbin). Have you had any conversation with Dr. 
Whitesides since that night? 

A. No, sir; I did not speak to him since that night. 

TESTIMONY OF JAMES CROSBY. 

Examination in chief by Mr. Corbin. 

Q. Where do you live? 

A. In York County, on Bullock's Creek, on Dennis Crosby's plan- 
tation. 

Q. How long have you lived there ? 

A. All my life; I belonged to him all my life. 

Q. Where did you live last winter, during Janjiary, February and 
March ? 

A. With Mr. William Wil;on ; he is sometimes called Big Billy 
Wilson. 

Q. Did the Ku Klux Klan visit you last winter? 

A. Yes, sir. 
33 



514 

Q. Tell the jury all about it? 

A. Well, they came to me first on Sunday night; I had a long 
talk about them before they came ; I had been in John Thompson's 
house between ten and eleven o'clock that night ; I broke round and 
came out, and heard the dogs barking mightly towards squire Hood's, 
and I went down into ray house and pulled off my Sunday clothes 
and put on my every-day clothes. About this time I heard a voice 
shouting up in the old field, and saying "Jim! Jim I " and I came to 
the door and said, "Avhat do you want?" It was my mother-in-law. 
She said, " tliey are killing my poor children up here." I didn't want 
to be scrimmaged, because I thought women were very talkers, any- 
how, and I was not going to be frustrated by any bother of her's, 
and she staid there, but I heard the Ku Klux when they were up at 
her house; and after a while I seen them coming down, and they 
came right by my door and right up to John Thompson's house, and 
thev came against the door and broke it open, and the sound of that 
door was not over till the other crowd came up to the other door 
and burst it open ; I still sat there, and I heard some of them say, 
" God damn him, shoot him ; " and I then heard the lash of a whip — 
whipping a little boy, and I still sat there, for I w-as not going to 
leave my house that night, because I had done nothing, and I still 
staid there. After a while the others came along and said, " hell, 
here is another house ; " and they came to the door and burst it open. 
By this time there was a crowd at the front door, and they steps up 
to the door and hollers out, " God damn you ; " and then he cocked his 
Kun and then I walked out. Said he, " who are vou ? " And I said " mv 
name is Jim Crosby." " Oh yes," said he, " you are that God damn 
preacher." Says I, " yes, I am." Then he said, " what in the hell are 
you doing here? " Said I, "I came here to work." " And what do you 
come on this God damned plantation for?" Said I, "I didn't think 
there was any difference in working for any one." " God damn you," 
said he, "light a candle." Then they began talking as fast as they could, 
and asking me about Mr. Wilson, and what he came here for ; and said 
he, "God damn you, get some pine and make a light." Then they swore 
at me, and asked me for my gun. I told them it was in the house. "God 
damn you," said he, " go and get it." I went into the house and got the 
gun, and then he swore at mc again. The}' then made me come out of 
the house, and six of them fell on me there and whipped me at once. 

Q. What did they whip you with ? 

A. Cowhides and hickories ; the reason I know that they were hick- 
ories was that I saw they brought them with them, and I know per- 
fectly that the otiiers had cowhides ; then one of them told me to 
take hold of my gun, and he said, "God damn you, knock it against 



515 

that wood stump ;" then they swore at me dreadfully again ; and made 
me knock the gun against the stump again ; it was broken into four 
or five pieces ; then they swore at me again, and said : "We will come 
back and see you again." After the gun was broke, one of them says 
to me : " What are you going to tell the negroes to-morrow — what the 
Ku K!ux have done to you to-night ?" Said I: "I am not going to tell 
nothing at all." " See here," said he, " You tell these negroes that they 
must not let us catch any God damned nigger in this plantation by 
this time Saturday ; if they did they would kill every God damn one 
of them." Says he : " Are you going away from here to-morrow ?" 
Says I : " I Avill try." Said he : " God damn you, you had better go." 
"Are you going to do this?" said they. I said : "Yes." "Now, God 
damn you, dance round for us." I said I could not dance ; then they 
swore dreadful at me, and I jumped up and done what I could, but still 
I did not dance any. [Here followed an obscene expression, which we 
omit.] Then they told me to go to bed. That was the first raid they 
made on me. 

Q. Now, go on with your story ? 

A. The next time they came to me I was lying up in tha gin house, 
and what awaked me that night was the sound of the guns round Big 
Billy Wilson's house. They had shot a dog. I went to the door, and 
I heard them say, "God Almighty d — n me, he is in there, and he has 
got to come out." They said if he didn't come out they would 
shoot the^ d — ^d house all to pieces.' That was Billy Wilson's house ; 
I saw him there, with a light in the house, and I saw him when he 
came out ; and I heard them say : " God d — n me if he isn't fat." I 
came from the platform, and went out into the thicket, and I didn't 
know any more that night; and as they went on, I heard about 
twenty pistols fired. There were two crowds of them; and that was 
the end of that raid. 

Q. When did they next come back? 

A. It was about two weeks between the times. The next time they 
came back, I was sitting in my house. I had been lying out from 
the time they first came — from the first or second week in January, 
till it was nigh March. 

Q. Had you been lying out all that time ? 

A. Yes, sir, for fear of being catched in the house. 

Q. Tell us about the next raid ? 

A. The next time I was sitting in my house, and what wakened me 
was my wife, who had just left me, and had gone to bed; she had 
been sick. She heard something, and she said : " What is that ?" I 
made no answer, but slipped out at the back door, and stepped round 
the way that I heard them coming up, and I kept the house between 



516 

me and tliem. They went on to John Thompson's house, and they 
went in there. I heard them up at John Thompson's cursing; for 
Mary Thompson, she talked mighty loud, and I heard them cursing 
her. I slipped on my pants, and was about fifty yards from the house, 
for I got away as fast I could, and crooked down in the corner of 
the fence ; and when I was there, and as I looked toward John Thomp- 
son's house, I heard a woman aud a man coming, and they came within 
ten steps of where I was, and I heard the words, "God d — n you, lay 
down ;" and she said, " I won't lay down." " God d — n you," said he, 
" do it at once," and I could hear the pistol crack, but she never lay 
down. 

Q. Who was that ? 

A. That was Mary Thompson. 

Q. Who was the white man with her ? 

A. I do not know. 

Q,. What else happened ? 

A. That was the last raid ; on the first raid the men that whipped me 
was Joe Leach, Dr. Tom Whitesides aud John Mitchell. 

Q. Those two men here ? (pointing to the defendants.) 

A. Those two men sitting there, (pointing to the defendants.) 

Q. How long have you known John Mitchell ? 

A. Ever since I was a boy. 

Q. Have you lived near him ? 

A. He lives on Broad River, and I live on Bullock's Creek ; I have 
been seeing him occasionally all my life ; I cannot be mistaken about 
him. 

Q. How long a time have you known Dr. Whitesides? 

A. About four or five years. 

Q. Do you see him often ? 

A. Yes, sir. 

Q,. How did you recognize him that night ? 

A. I recognized Joe Leach and George Leach by their size. One of 
them is a mighty big, thick, stout man. I heard George Leach talking 
to my wife. I knew by the sound of the voice. 

Q. How did you know Dr. Whitesides? 

A. By his size. 

Q,. Nothing else? 

A. No, sir ; this was on the second raid ; and I knew his track when 
he went to the gin house for me ; they said when they came there they 
understood that Jim Crosby sle2")t in the gin house. 

Q. Who said so ? 

A. The Ku Klux said so themselves ; they said to ray wife, that they 
understood that Jim Crosby slept in the gin house, and that John Thomp- 



517 

son slept in the kitchen ; and the next morning I saw the tracks come 
down from the gin house, and they were all large but one, and one Avas a 
small, neat track, and everybody that saw that track said it was Dr. 
Whitesides'. 

Q. What kind of a foot has he ? 

A. It was a small, neat track, about as small a track as in that sec- 
tion. 

Q,. Have you seen him often during the last four years ? 

A. Yes, sir; occasionally. 

Q. How do you know Captain Mitchell ? 

A. By his size. 

Q. Nothing else ? 

A. Yes, sir; he had a red scarf over his face. 

Q. And he had red horns on ? 

A. Yes, sir; but I could not swear pointblank about his voice; all the 
proof I had was his size. 

Crosa- Examination hy Mr. Wilson. 

Q. You say you knew Dr. Whitesides by his size and by his tracks ? 

A. Yes, sir. 

Q. When was the track examined by you ? 

A. I examined it next morning. 

Q. Were there any other tracks about there ? 

A. Yes, sir ; them three that went up to the gin house after me. 

Q. A.nd you say you knew the track to be Dr. Whitesides' ? 

A. Yes, sir; on account of the size. 

Q. (by Mr. Corbin.) How many times did Dr. Whitesides come there? 

A. He was there the first raid that was done. I have no proof that 
Sam Moss was there. 

Q. (by Mr. Melton.) On what raid did you say you saw Captain 
Mitchell ? 

A. On the first raid? 

Q. First raid? 

A. Yes, sir. 

Q. Were you on the place the time the other raids were made ? 

A. Yes, sir. 

Q. Did you recognize any other person on the raid except Dr. White- 
sides ? 

A. After the first night that they came there, they Avere not all the 
same crowd ; there was always one or two that was in the first crowd in 
every raid that was made after. 

Q. You say it was the first night that you thought you recognized 
Captain Mitchell? 



518 

A. Yes, sir. 

Q. What night was it you heard this conversation between this man 
and same woman ? 

A. 'That was on the third raid. 

Q. (by Mr. Corl)iu. ) Have you voted in York County ? 

A. Yes, sir. 

Q. Are you a Radical or Democrat ? 

A. I am a Radical. 

Q,. Did Billy Wilson vote at the last election? 

A. Yes, sir; he voted the Radical ticket. 

Q. Was Wallace on that ticket for member of Congress ? 

A. Yes, sir. 

Q. Is Wilson well known to be a Radical ? 

A. Yes, sir. 

TESTIMONY OF CHARLES LEACH. 

Charles Leach, a witness for the prosecution, being duly sworn, tes- 
tified as follows : 

Examination in chief by Mr. Corhin. 

Q,. Where do you live? 

A. On Bullock's Creek, on Madison Smart's plantation. 

Q. How long have you lived there ? 

A. About five years. 

Q. Have you voted in York County ? 

A. Yes, sir. 

Q. What ticket did you vote ? 

A. The Republican ticket. 

Q,. Did you vote there last fall a year ago? Did you vote for Wallace 
for member of Congress ? 

A. Yes, sir. 

Q. Tell us if the Ku Klux visited you last winter ? 

A. They did. 

Q. When? 

A. A short while after Christmas, on Monday night. 

Q. Tell us all about it ? 

A. I remember being out, and I heard a gun fire, a little after bed 
time, towards Mr. Berry's ; I came out then, and I heard a terril)le 
shooting; said I, the Ku Klux are out to-night; and I watched and 
lay about for about half an hour, and gave up that they would not 
come, and then I went in and shut the door, and laid down and dropped 
off to sleep, wdien a crowd came down on me, and I had no chance of get- 



519 

ting away; they surrounded my house, and burst the door open, and 
throe of the men came in. "God damn you,'' said they, "make up a 
light." Tliey were in tlie middle of the floor ; they asked me for my 
gun, and said they. " If we find any we will kill you ;" said they, 
" You are a God damned Radical. " Yes," said I, " I voted the Radi- 
cal ticket ;" said they, " You belong to that God damned League." 
" Yes," said I, " I went to the League meeting twice, and," said I, " I 
didn't see much sense in it; I didn't go back any more; gentlemen," 
said I, " I can show you what kind of a man I am." On that I gave 
him a paper. "Did Scott write that?" said they; "Let us see the 
God damn paper," said he, and with that they squatted down, and 
said, " It looks like all right ;" this man who read the paper had a 
pistol in his hand, and the man on the right side had a pistol, and 
the one behind me had a double-barrelled shot gun ; then they drop- 
ped the paper, and went to the door, and I thought that I was all 
safe ; just as they got to the door, they gave me sixty or seventy 
lashes, and then they told me to go back to bed, " and if we hear any 
more of you, I will come back again." 

Q. Did you know any of the party ? 

xV. I didn't know nary a man. 

Q. Why didn't you know them ? 

A. Because they were so disguised ; all of them had their faces cov- 
ered up, and only little holes for their eyes and mouths ? 

Q. How many were there in the party ? 

A. I know there was not less than thirty or forty. 

Q. When they whipped you, how did they stand? 

A. One of them stood on the right, and another on the other side, and 
all around me, and they licked about me, right and left. ^ 

Q. What clothing had you on ? 
• A. Shirt and drawers. 

Q. Where did they whip you ? 

A. They whaled me right up from here (putting his hand on his hips) 
to my neck ; they cut me all to pieces, from here up to my neck. 

Q. How much did they injure you? Were you able to work ? 

A. No, sir ; I could not work at all that day ; I walked down to Mr. 
Smalls', and staid there a week. 

Cross-Examinatioii by Mr. Wihon. 

Q. Do you know Dr. Whitesides ? 
A. Yes, sir. 

Q,. Has he not, ever since the war, been very kind to the colored 
people. 

A. I never heard anything against him. 



520 

Q. Do you not knoAV of his kindness ? Do yon not know of his at- 
tending colored people free of charge, and aiding them out of his private 
means ? 

A. I know he has been practicing there. 

Q,. Don't you know of his attending them without charge ? 

A. I don't know. 

Q. Do you know of his giving them corn ? 

A. I know he gave some corn, and I got a bushel. 

,Q. Was he not regarded as a friend to the colored people ? 

A. I never heard anything against Dr. Whitesides, no way. 

Q. (by Mr. Melton). You say this was on Monday night? 

A. Yes, sir; it was after Christmas. 

Q. You say it was the first Monday night after Christmas ? 

A. I couldn't say. 

Q,.- Are you satisfied it was after Christmas? 

A. Yes, sir ; and I think it was after New Year. 

Q. Was it the same night there was some whipping in the neighbor- 
hood? 

A. I heard about some whipj^ing. 

Q. Who did you hear was whipped that night ? 

A. Charlie Good, Amos Howell, Jenny Thompson and Press Holmes, 
I was told. 

Q. You understood they were injured the same night that you were ? 

A. Yes, sir. 

Q. Did the others live in your neighborhood ? 

A. One was about four miles oif, and one was about one mile, and the 
other was about three or four hundred yards. 

Q. Was there any one else whipped on your plantation that night ? 

A. No one but me, sir. 

Q. AVhere was Press Holmes? 

A. He was on Howell's plantation. 

Q. Where was Howell whipped ? 

A. In the gin house. 

Q. AVhere was Jerry Thompson whipped ? 

A. I don't know. 

Q. Was Jerry Thompson at Henry Thompson's place ? 

A. Yes, sir. 

Q. Is his place called the " Beauty Spot ?" 

A. Yes, sir. 

Q. You say you did not recognize any of the parties? 

A. No, sir. 

Q. How long have you known Captain Mitchell ? 

A. I reckon 21 years. 



521 

Q. What is his temper about the colored people? 

A. He always treated me very well ; I knew nothing wrong about 
him. 

Q. What was his character among the colored people ? 

A. He was thought very well of, as far as I know. 

Q. (by Mr. Corbin.) Is Jerry Thomj)sou a voter? 

A. Yes, sir. 

Q. Did he vote at the last election ? 

A. Yes, sir. 

Q. Did he vote Republican or Democrat ? 

A. Republican. 

Q. How did Amos Howell vote ? f 

A. He never voted ; he is not old enough to vote. 

Q. How did Charley Good vote? 

A. I did not see him vote. 

Q. Was he a Republican or Democrat? 

A. He was a Republican. 

Q. Has he since been killed ? 

A. He was missed that night. He left that night. I saw him that 
day, but he has not been seen since. 

Q. Was he whipped the same night as you were ? 

A. Yes, sir. 

TESTIMONY OF ELIZA LEACH. 

Eliza Leach, being duly sworn, testified as follows : 
Direct Examination by Mr. Corbin. 

Q. Are you the wife of Charles Leach ? 

A. Yes, sir. 

Q. Where do you live ? 

A. On Samuel's plantation, in York County. 

Q. Do you remember any Ku Klux coming to your husband last^vin- 
ter ? 

A. Yes, sir ; I don't know what night it was, but it was Monday night 
after Christmas. 

Q. How long after Christmas ? 

A. A few weeks, I think. 

Q. Tell the jury what happened ? 

A. They rode up, and they broke down our door and ran in ; "Oh, 
hell ; make a light." One of them then went down on his knees and blew 
the light ; one of them ran up and fired in my husband's ear ; they 
asked him what sort of a man he was, and he showed them his paper, 



522 

and they read it, and they asked if Governor Scott wrote it, and he said 
"no." He said : " I never saw the man in my life." Then they said : 
" Have you got a gun and ammunition ?" He said he hadn't got none. 
They said : " Go and search," and said, " If we find any we will 
kill you." Said he, " If you can find any by searching, I am willing to 
die." Said they, " Come out and fetch a light." When he got out on 
the lot, they said : " God damn you, throw that light down." Then they 
went and whipped him ; when they had done whipping him, they stopped 
and talked to him, and they said, " If we hear any more from you, we 
will come back for you." 

Q. Did you hear them ask anything about his politics ? 

^. They asked him if he was a Radical — if he had joined the League ; 
he said he went there two or three times, but he didn't see any sense in it, 
and he didn't go back any more. 

Q. How many men did you see there ? 

A. The lane was full of them. I saw two at the fire. I had been 
two weeks sick, and I lay in my bed just peeping out, and the rest were 
all in the dark. 

Q. Did you know any of them? 

A. No, sir. 

No cross-examination. The prosecution here rested their case. 

Mr. Melton desired the Court to permit John W. Mitchell to be called 
to the stand as a witness for the defense. 

The application was overruled. 

TESTIMONY OF W. C. WHITESIDES. 

W. C. Whitesides, a witness for the defense, being duly sworn, testified 
as follows : 

Q. (by Mr. Wilson,) Do you know Charles W. Foster ? 

A. I do. 

Q. Did you see him while he was in jail at Yorkville ? 

A. I did. 

Q,. Did you hoar him speak on any occasion, and, if so, when, in re- 
ference to Dr. Whitesides ? 

A. Yes, sir ; I did. 

Q,. What aid he sivy ? 

A. He said he had thought he was the man on the raid, but he was 
mistaken ; that he was not on the raid at all. 

Q. What raid? 

A. On the raid that whipped Charley Leach and Charley Good. He 
said he was not the man that was on the raid, and that he would see 
Major Merrill and rectify it. 



523 

Q. Was any otlier person present when he said that? 

A. Yes, sir ; McArchey, John Miller and Robert Riggings were there. 

Q. Who was with you when you heard that? 

A. I think Mr. John Miller and Robert Reigan were in the same 
room. 

Q. Repeat what was said ? 

A. Dr. Whitesides asked Charlie if he was going to rectify that mis- 
take, and Foster said he was going up to Colonel Merrill's office to rec- 
tify it. 

Q. How long was Foster in jail ? 

A. I don't remember ; about a week, or probably more. 

Q. When Foster said he was going up to Major Merrill's to rectify the 
mistake, was he not in jail ? 

A. He was outside ; and then he started off; I think he was on his 
bond. 

Q,. (by Mr. Melton). Do you remember the night Charles Lynch 
was whipped ? 

A. I remember hearing of it next day. 

Q. Did you hear of any other persons being whipped at the same 
time ? 

A. Yes, sir ; Charles Good, I heard, was whipped the same night. 

Q. Where were you living at the time? 

A. At my father's. 

Q. Whereabouts is that? 

A. About twelve miles from Yorkville ; about three miles above 
Wiley's store. 

Q. How far above AViley's store was it to the place where Leach 
was whipped? 

A. I don't know exactly ; probably four miles. 

Q. From where you Avere living, then, to where you understood Leach 
was whipped, was about seven miles ? 

A. Yes, sir. 

Q. Did you see Captain Mitchell that night? 

A. Yes, sir. 

Q. What night do you mean ? 

A. The night it was reported these men were whipped. 

Q. Where did you see Captain Mitchell ? 

A. At my father's. 

Q. You say you saw Captain Mitchell on the night when Charles 
Lynch was said to have been whipped ? 
A. Yes, sir. 

Q. Where did you see him ? ' 

A. At my father's house. 



524 

Q. What hour of the night did you see him? 

A. It was about dark ; it was between dark and bed-time. 

Q. What was his mission ther6? 

A. He came to see my brother, Dr. Whitesides. 

Q. Was the doctor out? 

A. He was at Dr. Darwin's. 

Q. In which direction did Captain Mitchell go from your house? 

A. He went direct from our house, up a mile further, to Dr. Dar- 
win's. 

Q. How far above your house does Dr. Darwin live ? 

A. About a mile. 

Q. Do you know if he got him ? 

A. Yes, sir ; they came back by our house. Dr. Darwin, Dr. White- 
sides and Captain Mitchell. 

Q. How far would they need to travel from the house where you were 
to Dr. Mitchell's house ? 

A. About nine miles. 

Q. I understood you to say it was the next day you heard of the raid 
on Charles Leach ? 

A. Yes, sir ; it was. 

Q. (bj' Mr. Corbin). Are you a brother of Dr. Whitesides, the de- 
fendant ? 

A. Yes, sir. 

Q. Are you a member of t'^e Ku Klux Klan? 

A. No, sir. 

Q. Have you ever been ? 

A. No, sir ; I never was. 

Q. You say you heard that Charles Leach had been whipped the night 
before ? 

A. Yes, sir. 

Q. Do you know anything about it ? 

A. No, six*. 

Q. You say that you heard Charley Good was whipped ? 

A. Yes, sir ; the same night. 

Q. Do you know anything about it? 

A. I don't. 

Q. I understand you to say that John Mitchell, the defendant, was in 
search of Dr. Whitesides that night? 

A. Yes, sir. 

Q. What for? 

A. His mother was sick. 

Q. Is Dr. Whitesides his family physician ? 

A. No, sir ; not all the time. 



525 

Q. Is he the regular family physician ? 

A. I don't know whether he is or not. 

Q. Do you know whether his mother was sick or not ? 

A. Yes, sir. 

Q. How do you know? 

A. Only from what he said. 

Q. What time in the night was it that Mr. Mitchell and Dr. White- 
sides came back to your house ? 

A. It was about eight or nine o'clock. 

Q. Were they riding on horses ? 

A. Yes, sir. 

Q. In what direction were they going ? 

A. South. 

Q. In what direction did Leach, Pressley Thomasson and Charley 
Good live ? 

A. They lived south — in the same direction. 

Q. What direction is HoAvell's Ferry from your house? 

A. It is south-west. 

Q. In the same dii'ection they were going ? 

A. Yes, sir. 

Q. Did the road they went go to Howell's Ferry ? 

A. Yes, sir. 

Q. Did you see Mitchell, or Whitesides, or Darwin, again that night ? 

A, No, sir. 

Q. You were arrested, and were a prisoner at Yorkville, were you 
not? 

A. Yes, sir. 

Q. How did the conversation commence, of which you have spoken ? 

A. I was talking to Mr. McArchy. It was on the second floor of the 
jail at Yorkville. 

Q. When was it? 

A. It was a considerable time after I was arrested, and a short time 
after Foster came into the jail. I don't know how long. I don't think 
it was more than a week or two after I had been in jail. I do not know 
whether it was more than a week or two, or less than three. 

Q. Do you know when Foster was put in there ? 

A. He was put in there with me ; I remember the day he came in. 
The conversation occurred about four or five days after he came in 
there. 

Q. Do you know if he had made a confe-sion to Colonel Merrill? 

A. Yes, sir ; he said so. 

Q. Did he say what he had ^aid to Colonel Merrill ? 



526 

A. He told me he had made a confession, but he never told me '\^'hat it 
was. 

Q. But you believe he told you that he made a mistake in saying that 
Dr. Whitesides was the person ? 

A. I had heard that he had implicated Dr. Whitesides, and he said he 
was mistaken in the man. 

Q. And yet you don't know whether he had made a confession or 
not? 

A. He told me he had made it, and he told me he was mistaken in the 
man. 

Q. Did he tell you that he told Colonel Merrill that he implicated Dr. 
Whitesides as the man, and that he was mistaken? 

A. He did not say that he had told Major Merrill, but that he was 
mistaken in the man ; he said that Dr. Whitesides was not on the raid 
to whip Leach and Good and others. 

Q. Did he name those persons ? 
, A. No ; not those particular negroes. 

Q. Now, are you able to swear that he had said that he had made a 
mistake about implicating Dr. Whitesides as the person who was present 
at the Avhipping of Leach and Good, when he did not say anything 
about what raid it was? 

A. He didn't tell me anything about that, but it was the raid he was 
reported to have been on ; and he told me that he was mistaken in the 
man, and that he intended to rectify it. 

Q. To whom ? 

A. To Major Merrill. 

Q. Did he mention Major Merrill ? 

A. No, sir ; but he said he Vv'ould rectify it. He didn't mention Ma- 
jor Merrill's name, that I remember. 

Q. Did he mention where the raid occurred, in which he had implicated 
Dr. Whitesides ? 

A. No, sir. 

Ti:STIMONY OF JOHN MILLAR. 

John Millar a witness for the defence, being duly sworn, testified as 
follows : 

Direct Examination by Mr. Wilson. 

Q. Do you know Chas. W. Foster; did vou see him in jail at York- 
villc? 

A. Yes, sir. 

Q,. Did you hear any conversation in reference to Dr. Whitesides ? 



527 

A. I heard him say that Dr. Whitesides was the man he reported ; tliat 
is all that I heard him say ; after he got out, I heard him hollow back, 
and say that he was going to Major Merrill, and say that he would cor- 
rect that mistake about Dr. Whitesides ; and Dr. Whiteside replied, we 
will go home, then, in the morning. 

Q. Who heard this conversation besides yourself? 

A. I don't know who heard it ; I was not paying any particular atten- 
tion to it. 

Q. What raid was this man Foster speaking of? 

A. I don't know what raid, or anything about that. 

Q. But you heard him say he was mistaken in the man, in reporting 
Dr. Whitesides, and he was going to correct it ? 

A. Yes, sir. 

Q. Did he say he reported him ? 

A. No, sir; I don't know that he did, but I so understood from what 
he said, and he said he was going to Major Merrill's that evening to cor- 
rect it. 

Q, (by Mr. Corbin.) Are you a member of the Ku Klux Klan? 

A. No, sir. 

Q,. Have you ever been ? 

A. No, sir. 

Q,. Did you never make a confession to me and Major Merrill, iu 
Yorkville? 

A. No, sir. 

Q,. Did you not tell me that you were present at a meeting of the 
Klan ? 

A. I attended a meeting. 

Q. How did you happen to be there? 

A. They were reporting round the country about the Ku Klux, and 
they said they might come to my house. 

Q. Tell us how you happened to be present at that meeting of the Ku 
Klux ? 

A. My cou^n told me he thought it would be best, and asked me if I 
didn't want to go into something of that sort. He asked me if I would 
not go along with him, and I told him I would ; he said if I didn't like, 
I needn't join; and I told him if I liked, I might; so I went there, but I 
did not join, and never have. 

Q. How many persons were present at that meeting ? 

A. Fifteen or sixteen, I guess. 

Q. Where was it, and when was it ? 

A. At Sharon Church. 

Q. What time was it ? 



528 

A. I don't know, but think it was some time in the spring; it may- 
have been along in IMay, I think. 

Q. ^Yas that the only meeting you ever attended ? 

A. I was present at one more. 

Q. How long after that ? 

A. I don't know. 

Q. Were you ever on a raid ? 

A. I never w^as. 

Q. Did you not go with the crowd that made Charles Russell 
dance ? 

A. No, sir. 

Q. Did you go and ride with a party that left Sharon Church, after 
the meeting, and go down and visit Squire Sam Brown ? 

A. No, sir ; Coleman and Dan Carrol Avas with me at the meeting, 
and we went on to Carrol's, and staid there all night; they told me if I 
didn't mind the Ku KIux would be afteir me, and do something with me ; 
I thought I would like to know when they would be riding round, so I 
might watch for them ; they told me if I would go with them, I might 
see. 

Q. So you went to the meeting ? 

A. Yes, sir ? 

Q. How did you know when the meeting was to take place ? ■ 

A. A cousin of mine told me. 

Q. What was his name ? 

A. Napoleon Miller. 

Q. Did you think it was very surprising that your cousin, who was d 
member of the Ku Klux, should invite you to be present, when you were 
not a member of the Klan ? 

A. He knew- I would just keep it safe. 

Q. Just as well as if you were a member of the Ku Klux Klan ? 

A. Yes, sir ; I reckon so. 

Q. Did you take the oath ? 

A. No, sir ; I never did. * 

Q,. Do you remember making a confession to Major Merrill ? 

A. Yes, sir, I do ; but did not make a confession ; I just told him w'hat I 
knew about it. 

Q. When did this conversation in Yorkville jail occur ? 

A. I do not know the day. 

Q. How near were you to Foster? 

A. They were all standing around talking, and I was near enough to 
hear all they said. 

Q. Did you hear liim say he had made a confession ? 

A. No, sir; I just thought he had, and I heard he had. 



529 

Q. He didn't tell you what raid he had reference to? 

A.*N"o, sir. 

Q. Or what colored persons he whipped ? 

A. No, sir. 

Q. What did he say he said ? ' 

A. He said he was mistaken in Dr. Tom Whitesides being the man 
that he had reported, and when he went out he hollowed back, that he 
was going up and would correct that thing this evening. 

Q. How long a time was it between the first and second conversation ? 

A. Only a day or two ; perhaps three or four days; it was Dr. White- 
sides that hollowed to him as Foster was leaving the yard ; I think he 
asked him if he was going to correct that; he said, "Yes, I am going 
up there right now." 

Q,. Did he say what mistake he meant ? 

A. No, sir ; but I just thought — 

Q. Was that all he said ? 

A. Yes, sir; but I knew in my own mind what it was ; I knew from 
what he said to me on the lower floor that he meant Dr. Whitesides. 

Q. Were you and Dr. Whitesides confined together ? 

A. Yes, sir; in the same room. 

Q,. Were you near him when he hollowed out to Foster ? 

A. Right in the window, and looking out; neither of them said what 
they referred to ; if they did I don't mind, but he said he would correct 
the mistake. 

Q. Do you know anything of Dr. Whitesides saying that he would 
give Foster $25 if he would go to Major Merrill and say that? 

A. I never heard it till yesterday ; I heard him say that he would be 
willing to give $25 if Dr. Whitesides was at home, attending McArchy's 
family. 

TESTIMONY OF ROBERT RIGGINGS. 

Robert Riggings, a witness for the defence, being duly sworn, testified 
as follows: 

Examination in Chief hy Mr. Wilson. 

Q. Do you know Charles Foster ? 

A. Yes, sir. 

Q,. Did you see him in jail at Yorkville? 

A. Yes. 

Q. When was that? 

A. I could not say the date ; it was when I was confined a few weeks 
ago. 
» 34 



530 

Q. Did you heai' any conversation in reference to Dr. Tom White- 
sides ? if so,- what was it ? 

A. I heard him talking about Dr. Thomas Whitesides, my brother. 

Q. Who was present? 

A. Several other persons. 

Q. What did he say ? 

A. He said he was mistaken in the man — that was on the Charles 
Good raid. He was mistaken about his being on the raid. He had told 
Major Merrill that he was on the first raid, but he was mistaken in the 
man. 

Q. Did you hear Dr. Whitesides call out to Charles Foster when he 
was outside the jail? 

A. Yes, sir, I did ; that was after the conversation down stairs. 

Q. What reply did Charles Foster make? 

A. He said he would hx it with Major Merrill ; he was going right 
then, and he would tell the Major he was not the man. 

Q. (by Mr. Corbin.) Have you lived at Yorkville all your life? 
Were you a soldier in the Confederate army ? 

A. I was in the reserves; not in the regular service. 

Q,. Are you a member of the Ku Klux Klan ? 

(Question objected to.) 

(Tvlr. Wilson informed the witness that he was at liberty to decline to 
answer.) 

Q. (by Mr. Corbin.) Do you decline to answer ? ■ • 

A. I do. 

Q. Were you Chief of a Klan? Do you decline to answer ? 

A. I do. 

Q. Were you present on the Jim Williams raid when Jim Williams 
was killed? 

A. I decline to answer. 

Q. Did you ever admit to me and Major Merrill that you were a njcm- 
ber of the Klan ? 

A. I decline to answer that also. 

TESTIMONY OF ROBEKT R. DARWIN. 

Robert R. Darwin, being duly sworn, testified as follows; 

Examination in Chief by Mr. Wilson. 

Q. Where do you live? ^ 

A. In York County. 

Q. What is your profession ? 

A. I am a practicing physician. 



531 

Q. Do you kuow Dr. Thomas Whitesides ? 

A. Yes, sir, very well. 

Q. Is -he a practicing physician in your County ? 

A. Yes, sir. 

Q. Do you remember the night when Chas. Good and C. Leach were 
said to be whipped ? 

A. I do. 

Q. Did you see Dr. Thomas Whitesides that night ? 

A. I did. 

Q,. What time of the night did you see him ? 

A. He was at ray house that evening ; I was not at the house when he 
came ; it was just after dark that I came in, and he v/as there. 

-Q. How long did he remain there ? 

A. I suppose it was about eight o'clock when we left there. 

Q. Where did you go to when you left? 

A. To Capt. John Mitchell's. 

Q. What did you go there for ? 

A. To see Capt. Mitchell's mother. 

Q. What time did you arrive there ? 

A. I suppose it was about ten o'clock at night. 

Q,. What was the matter with Mrs. Mitchell ? 

A. She had epilepsy and a fit. 

Q. Who was the family physician wf Mrs. Mitchell ? 

A. Dr. Small was, and so was Dr. Whitesides, when Dr. Small could 
not attend. Dr. Whitesides was nearest, and I was next 

Q,. How long did Dr. Whitesides remain at Mr. Mitchell's? 

A. He remained thei'e till next morning after breakfast. 

Q,. Did you remain there also ? 

A. Yes, sir ; we both remained there. 

Q. Describe the room in which Mrs. Mitchell was lying. 

A. It was a large room. 

Q. Were there many persons present ? 

A. I don't recollect who was there ; Mrs. Howe was there and her 
daughter Sally, and Mrs. Whisonant. There were others, but I don't 
recollect who they were. 

Q,. Were they in the room where Mrs. Mitchell was ? And you say 
Dr. Whitesides remained there all night till next morning? 

A. Yes, sir. 

Q. About what time did you leave the house to go to Mrs. Mitchell's ? 

A. About 8 o'clock. 

Q. How far was your house from Mr. Mitchell's ? 

A. About eight miles, I think. 

Q. About what time did you arrive at Mrs. Mitchell's? 



532 

A. About 10 o'clock, I think. 

Q,. What houses had you to pass in going there ? 

A. We passed several houses — John Gilfillan's, John Thomas', Mrs. 
AVilkins' and McAHan's. 

Q. What relation is W. C. Whitesides to Dr. Thomas Whitesides? 

A. He is his father. 

Q. Did you sit up all night with Mrs. Mitchell ? 

A. Till about daylight ; I suppose I slept about two hours. 

Q. Was Mrs. Mitchell very ill or not? 

A. She had several attacks of epilepsy from chronic inflammation of the 
stomach. 

Q. Was any one with you when you went from your house ? 

A. Dr. Whitesides and Capt. Mitchell. 

Q. Was any one with Dr. Whitesides when he came ? 

A. I don't remember but that his lady was with him. 

Q. What did John Mitchell come there for ? 

A. He came after Dr. Whitesides. 

Q. For what purpose ? 

A. To see his mother. 

Q. (by Mr. Melton). How did you happen to go along ? 

A. Captain Mitchell asked me to go, with Dr. Whitesides, with him to 
see his mother. 

Q. What age is old Mrs. Mitchell ? 

A. Over sixty, I think. 

Q. How far is it from his house to Captain Mitchell's ? 

A. About eight miles. 

Q. How far is it from Captain Mitchell's to where Charlej^ Leach was 
said to have been whipped ? 

A. I think it is near four miles. 

Q. In what direction from Captain Mitchell's is it where Chas. Leach 
is said to have been whipped ? 

A. In a southeast direction, more south. 

Q. From Capt. Mitchell's house to your house, what distance is it? 

A. I live nearly north from him. 

Q. Do you know whether John Mitchell sat up ? 

A. I think he did ; I don't think he lay down at all. 

Q. Did you see him there during the night ? 

A. Yes, sir ; I did. 

Q. Did you take breakfast there next morning? 

A. Yes, sir. 

Q. Did you have any intelligence of this Ku Klux raid before you 
left Ca[)t. INIitchell's next morning? * 

A. I first heard of it after leaviug Captain Mitchell's. 



533 

Q,. How near to the river does Captaiu Mitchell live ? 

A. About one-half or three-quarters of a mile. 

Q. How far above Howell's Ferry? 

A. Between two and three miles. I recollect, now, I heard it before I 
left Captain Mitchell's that morning ; I also heard it on the road. 

Q. Who did you hear it from at Captain Mitchell's ? 

A. I think I first heard it from Captaiu Mitchell's son, Samuel. 

Q. Are you able to fix the day or the week you went to Captain 
Mitchell's ? What month ? 

A. I think it was in the early part of January, of 1871. 

Q. (by Mr. Corbin). Are you a member of the Ku Klux Klan ? 

(Question objected to.) 

Mr. Wilson informed the witness that he was at liberty to decline 
answering. 

A. I never Avas. 

Q,. Did you never make a confession to me and Major Merrill that 
you were a member? 

A. No, sir ; I never did. 

Q. Were you never present at a Ku Klux meeting ? 

A. I never was. 

Q,. Did you never make a statement to Major Merrill that you were 
a member? 

A. No, sir ; I never did. 

Q. Were you never present at a Ku Klux meeting ? 

A. I never was. 

Q. Yo I deny, then, all connection with the Ku Klux? 

A. I do. 

Q. Have you never been inside of the organization ? 
* A. No ; I never have. 

Q,. Have you never been upon a raid ? 

A. I never have. 

Q. Do you know anything about a meeting at which Alberton Hope 
was elected Chief of the Klan ? 

A. Yes, sir. 

Q. Were you present ? 

A. I stopped there when on a visit to a sick child. 

Q,. Was Alberton Hope Chief of a Klan ? 

A. I do not know. 

Q. Did you vote for him ? 

A. I did not. 

Q. Were you present at the meeting ? 

A. Yes, sir'; for a few minutes. I was not present during the whole 
of the meeting:. 



534 

Q. Did the Ku Klux allow strangers to be j^reseut at their meetings? 

A. I don't know. 

Q. How did you happen to go there ? 

A. They had a meeting in the neighborhood, about the burnings in 
the country. It was simply a neighborhood meeting, for self-defense. 

Q. You say it was on Monday night, in January ? 

A. I think it was. 

Q. Arc you certain about that ? 

A. To the best of my knowledge, I think it was. 

Q. What enables you to recollect that it was Monday night, in Jan- 
uary ? 

A. Well, I can tell you what. The next day I came up to McDill's ; 
that was on Tuesday morning; and from some other circumstances — 
other cases that I had — I know it was on Monday night. 

Q. Have you any record ? 

A. I have, but not with me. 

Q,. Have you consulted that record ? 

A. Yes, sir ; I have. 

Q. When did you consult it ? 

A. Well, I have done it lately. 

Q. How lately ? 

A. Three or four days ago. 

Q. Where? 

A. Ai home, sir. 

Q. Yorkville? 

A. Yes, sir. 

Q. And that record said it was Monday night ? 

A. Yes, sir. 

Q. So you cannot be mistaken about it ? 

A. I know I cannot. 

Q. Now, what was the date ? 

A. I think it was the 9tli of January. 

Q. Monday night, the 9th of January? 

A. Yes, sir. 

Q. Did your record state whether it was Monday night ? 

A. It did not state Monday night. 

Q. How do you know it was Monday night ? 

A. I just supposed it was Monday night. I think it was. 

Q. Have you looked in the almanac to find out ? 

A. No, sir ; I have not. I say it was the 9th of January. I recollect 
that very well. 

Q. You have no means of knowing it was Monday night except from 
general recollectiou ? 



£35 

A. Only iny date that I have. 

Q. Yet you have not consulted the almanac ? 

A. I am pretty certain it was on Monday night, sir. 

Q. Do you know what day the 9th came on ? 

A. Day of the month ? 

Q. Yes ; or day of the week ? «• 

A. I don't recollect. 

Q. Do you know what day of the mouth Charley Leach was whipped? 

A. The night that I was at Captain Mitchell's. 

Q,. Do you know what day of the month that was ? 

A. I think that was the 9th of January. 

Q. \yho said it was that night that they were whipped ? 

A. The way — the nrst I heard of it was from Captain Mitchell's son 
that went to the post office the next morning for some letters. I think 
he started after breakfast. He said Pres. Thompson was whipped. 

Q. You did not know" of your own knowledge? 

A. I did not. He said he was whipped that. night. The report was 
going around all over the country the next day. I did not know that 
he was whipped only from what I heard everybody say in the country. 

Q. Do you know anybody that was present at that whipping ? 

A. I do not. 
- Q. Anybody ever tell you they were present on that raid ? 

A. No, sir. 

Q. Do you know whether Joe Mitchell w-as present that night ? 

A. I do not. - • \ 

Q. Do you know w^hether he was at home that night ? 

A. I think Joe was at home. 

Q. Did you sit up that night— did you go to bed ? 

A. I think I sat up about two hours. 

Q. When did you go to bed ? 

A. I cannot tell exactly when I went to bed. 

Q. What time do you think ? 

A. It might have been about four o'clock in the morning. 

Q. You sat up all night until four o'clock ? 

A. It was light when I got through. 

Q. What were you sitting up for ? 

A. Attending Mrs. Mitchell, 

Q,. And at four o'clock in the morning you went to bed ? 

A. Yes, sir. 

Q. What were you doing all that time ? Did Mrs. Mitchell require 
your personal attention all night ? 

A. Well, yes ; all the time, pretty much, when I was there. I was 
pretty much iu her room during the time I staid there. 



536 

Q. How ftir is Mitchell's beyond the " Beauty Spot ? " 

A. I don't know. 

Q. Do you know where the " Beauty Spot " is ? 

A. Yes, sir ; I reckon I do. I was there once when a boy. I don't 
recollect much about the place. 

Q. Was it the place where Pres. Thompson lived ? 

A. I don't know. 

Q, Do you know Pres. Thompson ? 

A. I never knew him. 

Q. Don't you recollect hearing that name particularly that morning ? 

A. I heard it the next morning after breakfast. 

Q. Is not it a familiar name to you ? 

A, No, sir ; not at all. I don't know that I have ever seen him — 
never seen the boy in my life, as I recollect of. 

Q. You don't know how far Mitchell's place is from the Beauty Spot? 

A. No, sir. 

Q. Is it ten miles ? _ ■ 

A. No, sir ; not that far. 

Q. Five miles ? 

A. I don't know, sir ; it is below Howell's Ferry, and I think Captain 
Mitchell lives two or three miles from the ferry ; how far below the ferry 
it is I don't know. 

Q. Did you hear riding around that night ? 

A. I did not, sir. 

Q. Didn't hear any shooting, or anything of the kind ? 

A. I did not. 

Q. How far does Charley Leach live from John Mitchell's ? 

A. I think he lives about four miles — between four and five miles. 

Q,. AVhat plantation does he live on ? 

A. I think on Mr. Smart's. 

Q,. Did you hear he was whipped the next morning? 

A. I don't recollect hearing anything about him next morning. 

Q. Now, I understand you to say that John Mitchell was at home all 
night, until four o'clock in the morning? 

A. He was. 

Q. In your presence? 

A. Yes, sir ; until I laid down. 

Q. And Tom Whitesides was there also ? 

A. Yes, sir ; he was there. 

Q. And that was on the ninth of January — Monday night ? 

A. I think it was. 



537 

TESTIMONY OP MRS. MARY HOWE. 

Mrs. Mary Howe, called by the defense, being duly sworn, testified as 
follows : 

Direct Examination hy Mr. Wilson. 

Q,. Where do you reside — in what County ? 

A. York. 

Q. Do you remember hearing of the raiding upon Charles Leach and 
other negroes iu Yorkville ? 

A. Yes, sir. 

Q. Where were you on the night that that was said to have oc- 
curred ? 

A. I was at Capta'n Mitchell's. 

Q. Did you live there ? 

A. No, sir. 

Q. How did you come to be there ? 

A. Well, I was sent for that evening ; old Mrs. Mitchell was taken 
very sick. 

Q. What time did you go there? 

A. It was before sundown a little ? 

Q. Did any physician attend her that night ? 

A. Yes, sir. 

Q. What physicau ? 

A. Dr. Whitesides and Dr. Robert- Darwin. 

Q. Dr. Thomas AYhitesides? 

A. Yes, sir. 

Q. What was the matter with her ? Was she very ill ? 

A. She was very bad — something like fits or spasms. 

Q. Who was up there that night ? 

A. The family — the whole family. 

Q,. Name the persons ? 

A. Mr. Mitchell — Captain John Mitchell — his wife, his sister, Mrs. 
Whisonant. 

Q. Who else? 

A. Myself, my son Julius, and Sally Howe. 

Q. What about the physicians? 

A. Dr. Thomas Whitesides and Dr. Darwin were there also, all night ; 
we all staid up there all night. 

Q,. You set up yourselves? 

A. Yes, sir ; all night. 

Q. Was Dr. Whitesides in the same room where Mrs. Michell 
was ? 



538 

A. Yes, sir. 

Q. AVere you in that room ? 

A. Yes, sir; all night. 

Q. You set up with Dr. Whitesides ? 

A. I did. 

Q. Are you certain he was there all night? 

A. Yes, sir. 

Q. What time did he and Dr. Darwin get there ? 
^ A. About ten o'clock. 

Q,. AVhat time did Dr. Whitesijdes leave there? 

A. Well, it was after breakfast. 

Q,. When did you first hear of these colored men having been whipped 
— Charles Leach and Good, and the others ? 

A. It was after breakfast, the next morning. 

Q. Do you know what day of the week this occurred — what night? 

A. It was the 9th of January. 

Direct Examination by Mr. Melton. 

Q. Who went for the physician that night? 

A. Captain Mitchell. 

Q. Do you know, of your own knowledge, at about what time he left 
to go for the physician? 

A. Yes, sir ; he started about dark. 

Q. Did he return, do you know, with the physician? 
, A. Yes, sir. 

Q,. Can you say whether or not he was at home that night, after he 
returned? 

A. Yes, sir ; he was. 

Q. Through what source did you hear, next morning, of this whipping- 
having taken place? 

A. Mr. Mitchell sent his son, Samuel, over to the post office for some 
letters, and he brought the news when he came back. 

, Q,. Do you know whether it was brought over that night by any one 
else? 

A. I don't know that it was. 

Q. What direction from the post office was Mr. Mitchell's ? 

A. Kather east. 

Q. Was it about in the direction of the plantation where Charles 
Leach was living? or do you know where he was living? 

A. Yes, sir; he was living no, sir ; Charles Leach, I don't know 

where he was living. 

Q. You do know where the post office is ? 

A. Yes, sir; it is on Mr. Thouiasson's plantation. 



539 

Q. Do you know where Pres. Thomasson lived ? 

A. He lived ou the plautatiou — Mr. Thomassou's — where the post office 
is; 

Cross- Examination by Mr. Cor bin. 

Q. How do you know that it was the 9th of January ? 

A. I recollect it very well. 

Q. How do you recollect the date? 

A. Well, I recollect it from circumstances. 

Q,. What circumstances? 

A. I.kno*v that it was on Monday night. 

Q. How do you know that? What enables you to recollect it? 

A. I cannot tell you exactly now, but I recollect very well it was on 
Monday night? 

Q. When was your attention f!rst called to the fact that it was on 
Monday night? 

A. I knew by the old lady being sick. 

Q. What has that to do with Monday night ? 

A. I recollect that it Avas Monday she was very sick. 

Q. Can you tell any circumstances whioh enables you to fix this as 
Monday night, the ninth of January^ 

A. I don't recollect any now, just at this time. 

Q. When did you first think that it was Monday night, the 9th of Jan- 
uary ? 

A. Well, I knew from the old lady's being sick. 

Q. But when did you first fix that fact in your mind that it was Mon- 
day night, the 9th of January ? 

A. Well, I recollect it well. 

Q. Any special reason for collecting it? 

A. I recollect that my son went down with his wife to visit her uncle's 
on Saturday, and it was the next Monday week that she was taken very 
bad. The family were all at home then. 

Q. Do you remember what day New Year's came on? 

A. It came on Sunday, I think. 

Q. Sure about that? - • 

A. I think so. 

Q. And that the next Monday night was the 9th of January ? 

A. The next Monday night week. 

Q: Do you know what day of the week last Christmas came on ? 

A. I think it came on Sunday. 

Q. Do you remember the date of the raid on the County Treasury in 
York? 

A. No, sir; I don't remember that. 



540 

Q. Are you positive that the first time you lieard of the raid on 
Charley Leach was that morning ? 

A. Yes, sir. 

Q. You didn't see Charley Leach yourself, that morning? 

A. No, sir. 

Q. Didn't see Pressley Thomasson ? 

A. No, sir. 

Q. Didn't see Amos Plowell? 

A. No, sir. 

Q. Nor Charley Good ? 

A. No, sir. 

Q. Didn't learn from any of those persons that they had been whipped 
that night ? 

A. No, sir ; didn't see any of them. 

Q. Did Mr. Mitchell's son say that ne had seen any of those folks that 
had been whipped ? 

A. No, sir ; he didn't say so. 

Q,. Nobody knew, out of the house 'that morning, whether they had 
been whipped that night or not, except by report ? 

A. No, sir ; only by report ; they didn't say. 

Q. Have you been talking with anybody about these dates? 

A. No, sir ; not particularly. 

Q. Haven't you talked with Dr. Darwin aud Dr. Whitesides? 

A. No, sir. ' 

Q. Nor Capt. Mitchell ? 

A. No, sir. > 

Q,. Your attention has never been called to it until to-day on the 
stand ? 

A. No, sir ; never. 

Q. You can usually remember the days of weeks and months, can you, 
right along through the year ? 

A. Yes, sir. 

Q,. And tell what happened on those days ? 

A. Sometimes I can. 

Q. When did you first hear cff the raid on the County Treasury at 
Yorkville ? 

A. Well, I don't recollect now. 

Q. You have got a son, Julius Howe? 

A. Yes, sir. 

Q. Do you know whether you heard of it last March or last February ? 

A. Well, I don't recollect. I can't tell you. 

Q. You cannot tell when you heard it last ? 

A. No, sir ; I can't tell you how long it was after it happened. 



541 

Q. Can you tell wlien you heard of it first ? 
A. I don't recollect now. 

Q. It was a notable thing in York County, wasn't it ? 
A. Yes, sir. 

Q, But you cannot tell when you first heard of it? 
A. I don't recollect now. 
Q. Who told you when you heard of it ? 
A. I don't recollect that neither. 
Q. Didn't your son tell you of it? 
A. Well, I don't think he did. 

Q. Don't know whether he is a member of the Ku Klux or not, do 
you ? 

A. No, sir. 

Q. Now, why can't you remember that fact as you can remember this 
one ? 

A. Because I had circumstances ; I was at home, I suppose, when that 
happened. I had no circumstances that I could bring to mind now to 
remember that. 

Q,. Well, didn't you hear of a good many raids around thereon colored 
people ? 

A. I have heard of some. 

Q. Can you fix the date of any of them, when you first-heard of them? 
For instance, can you fix the date when Charley Good was killed ? 

A. No, sir. 

Q. When he first disappeared? 

A. I don't know; I didn't know him, nor know anything about him. 

Q. But didn't you hear of it ? 

A. Yes, sir ; I heard of it. 

Q. Do you remember when the whipping occurred down on Big Billy 
Wilson's place ? 

A. I don't recollect that neither ; I have heard of it. 

Q. Do you recollect when you first heard of it ? 

A. Yes, sir ; I heard of it. 

Q. When first ? 

A. The next day after. 

Q. What date was that — day of the month and day of the week ? 

A. I don't recollect. 

Q. How far do you live from Billy Wilson's ? 

A. Five or six miles-, I suppose. 

Q,. Know him well? 

A. No, sir ; never saw the man. 

Q. But you cannot tell when that whipping occurred, nor when you 
heard of it first ? 



542 

« 

A. Xo, sir. 

Q. Don't know wlietlier it was in March or April ? 

A. I suppose it was in March; cannot say exactly, though. 

Q. Is that as near as you can come to it ? 

A, I can't recollect when it was. 

Q. But this date you will fix as the true date, according to 3'our best 
information and belief? 

A. I suppose it was in March ; may be February ; I am not cer- 
tain. 

Q. What other raids do you recollect ? 

A. Well, I don't know any more in the neighborhood. I cannot recol- 
lect any more now, at this time. * 

He-Direct Examination. 

Q. You say you are enabled to fix the date from the circumstances 
of a visit of your own to his mother-in-law ? 

A. Yes, sir ; her uncle's. 

Q,. What time did that visit take place ? 

A. That was on the last day of the year — Saturday. 

Q. And you recollect, you say, that it was Monday week, after your 
visit ? 

A. Yes, sir. 

TESTIMONY OF MRS. HANNAH N. WHISONANT. 

Mrs. Hannah N. Whisouant was next called for the defense. Being 
duly sworn, she testified as follows : 

Direct Examination by Mr. Melton. 

Q. Where do you live ? 

A. Yoi'k County. 

Q. Where were you living in January of this year ? 

A. I was living at the residence of my husband. 

Q,. Where were you, though, during the greater part of the month of 
January ? 

A. I was at the house of Captain Mitchell. ' 

Q. How are you related to him ? 

A. I am a sister of his. 

Q,. Do you recollect the occasion of your mother's being ill during that 
mouth ? 

A. Yes, sir. 

Q. How was she afllicted ? 



543 

A. With nervousness, and sometimes spasms ; in fact, she had spasms. 

Q. Do you recollect who were the physicians in attendance on her 
that night ? 

A. Yes, sir ; Dr. Whitesides and Dr. Darwin. 

Q. Do you recollect at what hour of the night they came ? 

A. Ten o'clock. 

Q. Do you know who went for them ? 

A. My brother, Captain John Mitchell. 

Q. Do yon know at what hour of the night he left fur the doctor ? 
. A. Between sundown and dark. 

Q. Wlien was your mother taken ill ? 

A. She was taken worse that evening ; she had been in bed, although, 
for some time. 

Q. Who sat up with her that night — or, did any one? 

A. There was several — myself, my sister-in-law, Mr. John Mitchell, 
Mrs. Howe, Miss Sallie Howe, and the doctors were there ; they sat up 
all night ; my brother John sat up all night. There vv-ere others that sat 
up all night. 

Q. Were his sons there that night? 

A. Yes, sir. ^ 

Q. To how late an hour were you waiting upon your motlier ? 

A. I was up all night, sir. 

Q. Are you able to say whether Dr. Whitesides was there all night? 

A. Yes, sir ; he was there all night. 

Q. Are you able to say whether John Mitchell was there all night ? 

A. Yes, sir ; I know he was there all night. 

Q. iSow, can you fix what night of the week — what day of the v/eek — 
this was ? 

A. It was the 9th of the month. 

Q. What day of the week ? 

A. It was Mondt.y night. 

Q. How are you able to fix the date in your mind ? 

A. I recollect what day Christmas was, and mother was so bad ; there- 
fore, I recollect what day it was. 

Q. Do you know where Charles Leach lived at that time ? 

A. Yes, sir ; he lived at Madison Smarr's. 

Q. You know him ? 

A. Yes, sir. 

Q. Did you hear of his having been Ku Kluxed ? 

A. Yes, sir. 

Q. When did you hear it ? 

A. I heard it the morning of the 10th. 

Q. At what hour of the day ? 



544 

A. Tolerably early in tlie morning, 

Q. Did you hear of any others having been Ku Kluxed ? 

A. Yes, sir ; I heard that they had been to Mr. Roland Thomasson's, 
and had whipped Pres. Thomasson. 

Q. Did you hear of any others having been whipped that night ? 

A. No, sir ; I "don't recollect of any others. 

Q. How did you hear it ? 

A. Samuel was sent down to the post office, and came over and told us 
Mrs, John Smith had informed him so. 

Q,. Do you know whether .you heard it the next morning through any 
other source ? 

A. There was a boy came and said they had whipped him. 

Q. A colored man ? 

A. Yes ; one Jerry Darwin. 

Q, Where was he living? 

A. At Mr. Wallace's, on Squire Darwin's plantation. 

Q. You heard it from those two sources ; did you hear it from any 
other source the next day ? 

A. No, sir ; I don't recollect of any. 

Q. How long did your mother's illness continue ? 

A. Some time. 

Q. How long did she continue severely ill ? 

A. She wasn't so bad but a few days. 

Q. Have you any knowledge of a raid made upon Captain John 
Mitchell, at any time, by the Ku Klux '( 

A. Ye-!, sir ; during Christmas week. 

Q. What occurred '? 

A. They came there, and said they were looking for some man. 

Q. Were they disguised ? 

A. I didn't see them. 

Q. Did you hear anything that passed ? 

A. 1 heard them talking, but didn't see them. 

Q. What happened ? What was the nature of their visit? 

A. I have told you, I believe, about all I know. 

Q. Did you hear of their making any threats with reference to John 
W. Mitchell ? 

A. I didn't see them ; I heard that they did make threats to him ; he 
must join. 

Mr. Corbin. That is too remote. 

Mr. ^[elton. Not so very remote ; he was himself raided upon Christ- 
mas week, and threatened. 

Q. I have asked you if you heard the threats made ? 

A. No, sir; I didn't hear them. 



545 

Mr. Melton. I now propose to ask whether, immediately after the oc- 
currence, John Mitchell said what had been the occajsiou of the visit, and 
what had passed between him and these parties. 

Mr. Corbin. I don't think that is evidence. 

The Court. It is not evidence. Anything that may tell against him 
would be evidence, but not something he had said in his favor. 

Mr. Melton. We propose to show it was a hostile visit of the Ku Klux 
upon him. 

The Court. You may show it, but you may not prove it through 
him. , 

Q,. That was Christmas week ? 

A. Yes, sir. 

Cross- Examination hy Mr. Corbin. 

Q. As I un'lerstand you, the only mode by Avhich you are enabled to 
recollect that this was on the 9th of January — on Monday night — is that 
you reckon back to Christmas day ? 

A. I had been staying there for some time ; therefore, I know what day 
it was ; I had been staying at my brother's, with my mother. 

Q How long previous to that had you been staying ? 

A. Three or four days. 

Q. How are you enabled to reckon back, then, to Christmas, and fix 
the day in that way ? Can you account for every day from Christmas up 
to that time ? 

A. I know the day I left home, and I know the day mother was 
taken sick. 

Q. How do you know that? What enables you to recollect? 

A. By her being so bad. 

Q. Her being so bad had nothing to do with Monday night, 
had it ? 

A. Of course, I knew that mother was sick. 

Q. I have no doubt you knew she was sick ; but what enables you to 
remember that it was Monday night ? 

A. I have told you, sir. 

Q. What do you say now about it ? What enables you to remem- 
ber ? 

A. I have told you that I can count back from the time Christmas 
came on, 

Q. What day was Christmas of the week? 

A. It was Sunday. 

Q. What day of the week was New Year ? 

A. Sunday. 
35 



546 

Q. Now, where were you frorn Christmas day to Xew Year? 

A. I was home part^ of the time, and part of the time at brother 
John's. 

Q. What day were you at your brother John's, between Christmas and 
New Year? 

A. I was there Thursday, I believe it was. 

Q. Are you sure ? 

A. I belive that was the day. 

Q. Are you cei;tain about it ? 

A. As well as I recollect, that was the day. » 

Q. Are you willing to swear positively that was the day? 

A. To the best of my recollection. 

Q. You won't say, absolutely, whether it was Tuesday, or Wednesday 
or Thursday? 

A. I will tell you, I was there several days between Christmas and 
New Year's. 

Q. How long did you stay there ? 

A. Stayed for some length of time. 

Q. How many days? 

A. From the time I first went, I was there some ten or twelve days. 

Q. You went after Christmas, and stayed there ? 

A. Until mother got better. 

Q. Now, how many days was it after you went to John Mitchell's 
before your mother was taken sick so badly ? 

A. It was on Thursday, and she was worse Monday following. 

Q. Positive about that, are you, that you went there after Christmas, 
and she was taken sick the Monday following — certain about that ? 

A. To the best of my knowledge, that was the time. 

Q. And that is the way you are enabled to remember it was on the 
9th of January? 

A. Yes, sir, 

Q. And you heard next morning, that is on Tuesday morning, after 
your mother was taken sick, for the first time, that Charley Leach had 
been raided upon ? 

A. Yes. , 

Q. Do you know Charley Leach ? 

A. Yes, sir ; I knew him. 

Q. Colored man ? 

A. Yes, sir. 

Q. You didn't see him ? 

A. No, sir. 

Q,. Do you know Pressley Thomasson ? 

A. No, sir ; I don't know him ; I have seen the boy. 



547 

Q. Do you know Charley Good ? ■ 

A. No, sir ; I never saw him to my recollection. 

Q. Did you hear next morning that all these persons had been raided 
on ? 

A. I heard those two — Pres. Thomasson and Charles Leach. 

Q. You don't know whether it was so or not, do you ? 

A. No, sir ; of course I don't. 

Q. It might have been any other night, for all that you know. Might 
it not have been Monday night, as far as you know ? 

A. They said they were whipped on Monday night. ^ 

Q. You have never seen any of them since, have you — Thomasson, 
Good or Leach — and learned from them what night they were whipped ? 

A. No, sir ; I have not asked them anything about it. 

Re-Direct Examination. 

Q,. Were you at your mother's during what we call Christmas week ? 

A. Yes, sir. 

Q. Did you remain there from that time until your mother took sick? 

A. Yes, sir; and some time afterwards. 

Q. You didn't leave from the time you went there, Christmas week, 
until after your mother was taken sick ? 

A. No, sir 

Q. How long after. 

A. She was taken sick before she was taken so ill on this night ; she 
was poorly for a day or two previous, and on Monday she took worse. 

Mr. Melton. Wheia people speak of Christmas, ordinarily, they mean 
the week, they do not mean the day; and when they say Thursday after 
Christmas, they don't mean Thursday after Christmas day, but Thursday- 
after the holidays. My friend has charged his offense as having been 
committed on the 20th of December, and, until his own witnesses came 
upon the stand, I didn't know that they would prove the fact that it was 
on the day our witnesses would prove it. That was my fear in the whole 
case. 

Mr. Corbin. The witness has stated that she went there on Thursday 
after Christmas, and the next Monday was when her mother took sick. 

Mr. Melton. She didn't say after Christmas day though, 

TESTIMONY OF MISS SALLIE HOWE. 

Examination in chief by Mr. Melton. 

Q. How are you related to Mrs. Howe ? 

A. I am her daughter. 

Q. How near do you live to Mr. John Mitchell's ? 



548 

A. It is about a quarter of a mile. 
Q,. Are you related to Cajitain Mitchell in any way ? 
A. No, sir ; I am not. 

Q. Have you any recollection of being at his house on the occasion 
when his mother, Mrs. Mitchell, was ill ? 
A. Yes, sir ; I was there. 
Q. Are you able to fix the date ? 
A. I cannot tell the date. 
Q,. Can you say what day of the week it was ? 
A. I do ngt recollect. 
Q. What caused you to be there ? 

A. Mrs. Mitchell was very sick and sent for mother and myself, and 
we went. 

Q. Who went ? 

A. My mother, myself and my brother. 
Q. What time of the day did you go there ? . 
A. It was in the evening. 

Q. Do you know whether the doctor was sent for that night or not ? 
A. Yes, sir. 

Q. Do you know who went for him ? 
A. Yes, sir ; Captain Mitchell. 

Q. Do you know at what time he went for the Doctor ? 
A. It was about dark. 

Q. Do you know what time the Doctor came? 
A. About ten o'clock, I think, sir. 
Q. What persons came ? 

A. Dr. Darwin, Dr. Whitesides and Captain Mitchell. 
Q. Who sat up all night with Mrs. Mitchell ? 

A. We all sat up ; mother and myself aud Mrs. Whisonant sat up all 
night. 

Q. Do you recollect whether Captain Mitchell was there that night ? 
A. Yes, sir ; he was there all night ; he came back about 10 o'clock ; 
he never was away all night. 

Q. Do you say you are not able to fix the day of the week ? Can 
you tell us what month it was ? 
A. It was in January. 

Q. Have you any certain impression upon your mind how long after 
Christmas it was '/ 
A. No, sir. 

Q. Can you say how long it was after New Year's day ? 
A, No, sir ; it was not long. 
Q. How long did you remain at Captain Mitchell's ? 



549 

A. I stayed there all uight, and left there next morning — at 9 o'cloclc, 
I suppose. 

Q. Had yon heard anything of this Ku Kluxing before you left 
there ; I mean on Pres. Thoraasson, and Charles Leach, and Charles 
Good? 

A. Yes, sir ; I heard that soon after breakfast. 

Q. Do you remember how you heard it ? 

A. Yes, sir. Samuel Mitchell went over to the postofBce, and told us, 
when he came back, that Pres. Thomassou and Charles Leach had been 
whipped. 

Q. Did you hear they had been whipped that night ? 

A. Yes, sir ; Charley Leach and Pres. Thomasson. 

Q. Did you hear it from any other source next day ? 

A. No, sir. 

Q. Can you say whether Dr. White sides remained there all night or 
not? 

A. Yes, sir. 

Q. Did Dr. Darwin remain all night ? 

A. Yes, sir. 

Cross- Examination by Mr. Corbin. 

Q. Have y^u a brother named Julius Howe ? 

A. Yes, sir. 

Q. Does he live at home with you ? 

A. Yes, sir. 

Q. Where was he that night ? 

A. He was at Captain Mitchell's. 

Q. Do you know whether he is a member of the Ku Klux Klan ? 

A. Well, I do not. 

Q. Did you ever hear him say ? 

A. No, sir ; I was never at a meeting of the Ku Klux Klan. 

Q. You don't know whether he was or not ? 

A. No, sir. 

Q. You say you don't know what night it was in January ? 

A. No, sir. 

Q. Did you see anybody who had been whipped, yourself? 

A. No, sir ; they said Charley Leach and Pres. Thomasson ; I know 
they were whipped that night ; I saw Samuel Mitchell, and he said so. 

Q. But he did not see those two colored men, and they did not tell 
him they had been whipped ? 

A. Well, he said he had heard it. 

Q. Then you heard him say that he heard that those two men had 

been whipped that night, and that is all you know about it ? 



550 

A. Yes, sir. 

Q. Did you know those boys, yourself? 

A. Yes, sir ; I knew Pres. Thomassou. 

Q. Did you know Charles Leach V 

A. I did not know him. 

Q. Did you ever talk to Thomasson about being whipped that night ? 

A. No, sir. 

TESTIMONY OF SAMUEL MITCHELL. 

Samuel Mitchell was next called for the defense, and, being duly 
sworn, testified as follows : 

Direct Examination by Mr. Melton. 

Q. What relation are you to Captain John Mitchell ? 

A. His son. 

Q. What is your age ? 

A. Fourteen. 

Q. Do you recollect the night your grandmother was sick ? 

A. Yes, sir. 

Q. Who was there that night ? 

A. Mrs. Howe, and Miss Sallie Howe, and Mr. Howe^ and pa, and 
Joe, and Dr. Tom Whitesides, and Dr. Darwin. 

Q. Were you up that night ? 

A. I was up till about 12 o'clock. 

Q. Do you know whether your father was at home when you went to 
bed? 

A. Yes, sir ; he was sitting in the room when I went to bed. 

Q. What time did you get up next morning ? 

A. I got up just after daylight a while, about daylight. 

Q,. When did you hear of Charles Leach being whipped ? 

A. I heard it next morning, down at Mr. Smith's. 

Q. How came you to be there ? 

A. I went down there to take some letters to the postoffice. 

Q,. Is it kept at John Smith's ? 

A. Yes, sir. 

Q. Whose place does he live on ? 

A. Mr, Thompson's. 

Q. Do you know where Pres. Thomassou lived ? 

A. Yes, sir. 

Q. Where? 

A. He lives on that place. 

Q. Do you know where Charles Leach lives? 



551 

A. Yes, sir ; he lives at uucle Mat. Smarrs'. 

Q. What did you hear at Mr. Smith's that moruiug? 

A. That the Ku Klux had been there and whipped them. 

Q,. When did you understand that they had been there ? 

A. That night. 

Q. Did you understand who they whipped ? 

A. Yes, sir ; I understood that they whipped Charles Leach, and But- 
ler Smarr, and Pres. Thomasson, and three or four more. 

Q,. Was that the first you heard of it? 

A. Yes, sir. 

Q,. Where did you go after you left the postoffice ? 

A. Came back home. 

Q. Did you there tell what you had heard ? 

A. Yes, sir. 

Q. Do you know of any other person coming next morning and tell- 
ing about this whipping having taken place ? 

A. No, sir ; I don't recollect any other. 

Q. Any colored man, to your own knowledge ? 

A. No, sir ; I don't recollect. 

Q. Do you recollect anything of your father having been visited by 
the Ku Klux at any time? 

A. No, sir. 

Q. Any recollection of any Ku Klux having come to his house ? 

A. Oh, yes, sir ; some came to his house one night. 

Q. When was it? 

A. I don't know when it was ; I don't know the date. 

Q,. Was it before or after Christmas ? 

A. It was in Christmas. 

Q. What do you mean by in Christmas ? 

A. Well, about the middle of Christmas. 

Q,. You mean the Christmas holidays ? 

A. Yes, sir. 

Q. How many men came there ? 

A. I saw seven. 

Q. What did they do ? 

A. They run all about over the house. 

Q. Were they disguised ? 

A. Yes, sir. 

Q,. How long did they remain ? 

A. About half an hour, I reckon. 

Q. Tell us what they did, besides running over the house ? 

A. I heard them ask pa was he a Ku Klux, and he told them no, and 



552 

they said : " Well, damn you, you have got to be." Pa say.-? : "I won't," 
and they said : " It is all right," and they went into another room. 

Q. Did you know any of the men ? 

A. No, sir. 

Q. Did you see any of them unmasked ? 

A. No, sir ; none that I know of. 

Q,. Did the men say what they came there for ? 

A. They said there was a man stole a horse, and they was coming down 
looking for him. 

Cross-Examination by Mr. Corhin. 

Q. Are you a member of the Ku Klux Klau ? 

A. No, sir. 

Q. Did your father ever swear you in ? 

A. No, sir ; he did not. 

Q. Who did swear you in ? 

A. Nobody swore me in. 

Q. You have seen men riding at night, with their masks ou'J 

A. No, sir ; I never did. 

Q. You saw those six or seven men that night ? 

A. Yes, sir; I saw them. 

Q. You saw them running about all over the house ? 

A. Yes, sir. 

Q. Did they go up stairs ? 

A. Yes, sir. 

Q, What for? 

A. Looking after that man. 

Q. What man ? 

A. I don't know who he was ; the man they supposed stole the horse ? 

Q. Did your father go with them ? 

A. Yes, sir. 

Q. Did they go down into the cellar ? 

A. We got none. 

Q. Did they look into all the rooms ? 

A. Yes, sir. 

Q,. Was your father afraid of them ? 

A. I don't know whether he was or not. 

Q,. He did not appear to be ? 

A. No, sir; he didn't appear to be so, much. 

Q. Was he afraid at all ? 

A. I don't know; you must ask him that. 

Q. Were you afraid ? 

A. Yes, sir; I was pretty afraid when they first came. 



553 

Q. Could you tell who they were ? 

A. No, sir ; I could not tell. 

Q. And they told your father that he had got to be a Ku Klux ? 

A. Yes, sir ; that is what they told him. 

Q. And he told them he could not ? 

A. Yes, sir. 

Q. Did they whip any colored people on your place that night ? 

A. No, sir. 

Q. Did they visit other colored people in the yard? 

A. We got none. 

Q. No one that lived on your place ? 

A. No one but a negro girl. 

Q. Were there no other colored people working for your father ? 

A. No, sir; I believe not, at that time. 

Q. Your father used to be away nights, did he not ? 

A. No, sir ; not that I know of. 

Q. You never knew it ? 

A. No, sir. 

Q. Do you know whether he had any masks or Ku Klux gowns ? 

A. No, sir; I do not kuow. 

Q. Did you never see him have a bag full of them ? 

A. No, sir. 

Q. Never saw a bag of that kind round the house ? 

A. No, sir. 

Q. Never saw him coming home any time with a bag full of clothes 
or something ? 

A. No, sir; I never saw him come in at no time with anything like 
that. 

Q,. Do you kuow whether the horses used to be ridden nights ? 

A. No, sir; if they were, they did not show it next morning. 

Q. Did you take care of the horses ? 

A. Yes, sir ; I fed them. 

Q. Did your brother Joe used to be out nights ? 

A. No, sir; he never was out. 

Q. Was he never out at night last winter at all ? 

A. No, sir; not that I know of. 

Q. Do you and he sleep together ? 

A. Yes, sir. 

Q. Was he always at home ? 

A. Yes, sir ; he was always at home. 

Q. Where is your brother Joe ? 

A. I don't know, sir, where he is. 

Q. How long has he been gone? 



454 

A. I reckon he's been gone about a month or six weeks. 

Q. Do you know what made him go away ? 

A. No, sir; he did not tell me. 

Q. He went away vei'y suddenly, did he not ? 

A. Yes, sir ; I saw him tliat one day, and that is the last I saw of 
him. 

Q. You did not see Charles Leach that morning as you went to the 
postoffice, did you ? 

A. No, sir. 

Q. Mr. Pres. Thomasson? 
'A. No, sir; I didn't see neither one. 

Q. You did not know, then, from what they said, that they had been 
whipped that night ? 

A. No, sir. 

Q. Who was it told you ? 

A. Mrs. Smith. 

Q. She told you that they had been whipped ? 

A. Yes, sir ; I reckon that she j ust told me that they were whipped. 

Q. Did she tell you how she heard that they had been wliipped ? 

A. No, sir; she did not tell how she had heard it; she said the ne- 
groes were there that night, and whipped the negroes round the house — 
Pres. Thomasson and all the rest of them. 

Q. Where was this postoffice ? 

A. At John Smith's. 

Q. W^ere any negroes whipped on the place that night ? 

A. Yes, sir ; Pres. Thomasson. 

Q. Did you see him ? 

A. No, sir. 

Q. What negroes did you see that were whipped that night ? 

A. Pres. Thomasson, Charley Leach, Butler Smarrs, and three or four 
more that were whipped. 

Q. You heard that down at the post office ? 

A. Yes, sir ; I heard it. 

Q,. How early in the morning was that ? 

A. After sun up awhile ; about half an hour or so. 

Q. How far oti'was the farthest of those you have mentioned from the 
post office ? 

A. They live about a mile, I i-eckon. 

Q. Then, the farthest one of those that were whipped lived a mile from 
the post office? 

A. Yes, sir. 

Q. How far was it from your house to the post office ? 

A. Two miles and a half. 



555 

Q. So that all those colored people who were whipped that night lived 
within three and a hal:^ miles of your home? 

A. Yes, sir, 

Q. Are you sure of that ? 

A. Yes, sir. 

Q. And yet you did not see any of them, nor hear any of them say 
that they were whipped that night ? 

A. " No, sir ; I didn't see any of them that day, nor hear any say that 
they had been whipped. 

Q. Did you hear any noise or hallooing that night ? 

A. No, sir. 

Q. Were you up till twelve o'clock ? 

A. Yes, sir. 

Q. You live on the Howell's Ferry Road ? 

A. No, sir. 

Q,. How far from it ? 

A. About two miles above it. 

Q. How far is the Howell's Ferry from your house? 

A. About two miles and a half. 

Q. How far is Madisons Smarr's place from yours ? 

A. About a mile. 

Q. Do you know where Dave Ferrester, a colored man, lived ? 

A. No, sir. 

Q. Did you say he was whipped that night ? 

A. No, sir ; I did not hear it. 

Q. Do you know what the Ku Klux signs are? 

A. No, sir, 

Q,. Have you never been told by anybody ? 

A. No, sir ; never was told by anybody. 

Q. Do you know what the grip is ? 

A. No, sir ; I don't know anything about that either. 

Q. Did your brother Joe neVer tell you ? 

A. No, sir. 

Q. Did you ever see your father bring home a double-barrelled shot 
gun in the morning ? 

A. No, sir. 

Q. How many double-barrel shot guns had you in the house ? 

A. Ain't got any. 

Q. Never had any ? 

A. Yes, sir ; we had Mr. Howell's awhile ; I borrowed it to go hunt- 
ing with. 

Q. But you have never seen any gun brought home in the morning, 
or any appearing suddenly in the morning ? 



556 

A. No, sir ; none. 

Q. Has there been none round the house lately*? 

A. No, sir ; there ain't been none round there lately that I know of. 

Q. Don't you know that your father had a double-barrel shot gun, and 
that it was given up to Col. Merrill a few days ago? 

A. Yes, sir ; I know that. 

Q. Where did that gun come from ? 

A. From McCowan's. 

Q. When? 

A. I don't know what time it was. Iseen him fetch a gun up to pa. He 
owed pa something, and fetched the gun and gave it to him for the debt. 

Q. When? 

A. I don't know Avhat time of the month it was. 

Q. Was it last spring or this fall ? 

A. This fall ; I believe it was. 

Q. How long ago ? 

A. It has been about three weeks ago. 

Q. Did you never hear whose gun it was ? 

A. No, sir ; I never heard till lately ; it was Mr. Plexico's. 

TESTIMONY OF THOMAS BOLEN. 

Tliomas Bolen was next called for the defense. Being duly sworn, he 
testified as follows : 

Direct Examination by Mr. Wilson. 

Q. Do you remember the night of the raid in search of John Thom- 
asson, at Bill Wilson's gin house ? 

A. Yes, sir. 

Q. Is John Thomasson the husband of Mary Robinson, as she is 
called ? 

A. Yes, sir. 

Q. Was Dr. Whitesides with the party that night ? 

The Court. That won't do ; that is a leading question. Ask who were 
with the party that night. 

Q. Who were in the party ? 

A. Allen Crosby, Sherod Childers, Hezekiah Porter, myself and Van 
Hemphill. 

Q. Was that the night that Mary Robinson was whipped ? 

A. Yes, sir. 

Q. Do you know Dr. Thomas Whitesides ? 

A. Yes, sir. 

Q. Do you know where he was that night? 



557 

A. No, sir. 

Q. Did you see liim that night ? 
A. No, sir. 

Q. Did you see him in the i^arty that night ? 
A. No, sir. 

Q. Do you know who was at this gin house ? 
A. Yes, sir. 

Q. Was Dr. Wliitesides one of those men or not ? 
A. No, sir. 

Q. You were along with the party that night? 
A. Yes, sir. 

Q. You know, then, that Dr. Whitesides was not one of the men that 
went to the gin house ? 
A. He was not. 

Q,. Do you know of Dr. Whitesides being on any raid ? 
A. No, sir. 

Direct Examination by Mr. Melton. 

Q. How many were of the party that night? 

A. Six, sir. 

Q. Name them again ? 

A. Allen Crosby, myself, Sherod Childers, Hezekiah Porter and Van 
Hemphill. 

Q. That is only five ; name them again ? 

A. Myself, Sherod Childers, Hezekiah Porter, Evans Murphy and Van 
Hemphill, and Allen Crosby. That was the crowxl, sir ; Allen was in 
command. 

Q. Do you recollect what time it was ? 

A. It was along when I was rising up cotton ground — about the first of ^ 
March, or some time along there ; I don't remember the date. Allen 
Crosby came and told me they was to make a raid that night. He came 
after me. 

Q. And you say that was the night Mary Robinson was whipped ? 

A. Yfcs, sir. 

Q. It was on Wilson's place ? 

A. Yes, sir. 

Q. Did you see anything of Mr. Mitchell that night ? 

A. No, sir. 

Q,. Do you know him — Captain John Mitchell ? 

A. Yes, sir. 



558 
Cross- Examination by Mr. Corhin. 

Q. Do you know John W. Mitchell ? 

A. Yes, sir. 

Q. Is he a chief of a Ku Klux Klan ? 

A. He is said to be. 

Q. In Yorkville ? 

A. Yes, sir. 

Q. Are you a member of the Klan ? 

A. Yes, sir ; I joined the party. 

Q. What Klan did you join ? 

A. I was taken in with Hood and Alf. Hood. A short time 

after I was in, I was told it was John Mitchell's Klan. 

Q. Did you ever attend a meeting at which he was present ? 

A. Yes, sir; I think I did. 

Q. What meeting was that ? 

A. The Wm. Kell raid. 

Q. Was John Mitchell there ? 

A. Yes, sir. 

Q. Took command of the Klan ? 

A. I suppose he was going to command the Klan ; he was there. 

Q. Are you sure of that ? 

A. Yes, sir. 

Q. Do you know him well ? 

A. Yes, sir. 

Q. What was the Bill Kell raid for ? 

A. I do not know Avhat the intention was. That was the first time I 
ever met after I joined the Ku Klux Klan. 

Q. You met there for the first time ? 

A. Yes, sir. 

Q. Was that the Mitchell Klan ? 

A. I suppose it was the Mitchell Klan ; it was called the Mitchell Klan, 
and Capt. Mitchell was there himself. * 

Q. Did the party have disguises ? 

A. Some was in disguise when I went, and some w^as not. 

Q. The raid fell through, did it not ? 

A. Yes, sir. 

Q. What was done with the disguises when you got through ? 

A. They were taken up and taken home, I suppose. 

Q. Who took them home ? 

A. I do not know. 

Q. Did you see Captain Mitchell put them in a bag ? 

A. No, sir. 



559 

Q,. You don't know whether he did or not ? 

A. No, sir. 

Q. This was the first raid you ever went on — this Bill Kell raid ? 

A. Yes, sir ; it was. 
' Q. What was the date of that ? 

A. It was in January some time ; shortly after I became a member. 

Q, When did you become a member ? ' 

A. Along in January. 

Q. About what time in January ? 

A. I cannot tell what time it was, but it W'as along in January — may 
be about the fifth or tenth — somewhere along there, but I cannot tell the 
day of the month. 

Q. How long after you w^ere initiated was it that this Bill Kell raid 
was ordered ? 

A. It was not long. 

Q. How long ? 

A. I am not able to state; but it was a short tinie; ten or fifteen days, 
or a week — somewhere along there; might have been longer than a 
week. 

Q. Was it not less than a week ? 

A. I do not think it was. 

Q. That was your first raid, a week after you were initiated ? 

A. A week or more, may be ; somewhere along there. 

Q. How long after that raid was it that you w^ent upon the raid upon 
Bill Wilson's place, at the gin hcuse? 

A. Along about the first of March, I think ; I was raising up cotton 
grounds, and Allen Crosby came and told me. 

Q. It was not on the 9th of January, was it ? 

A. I do not know ; I think somewhere along through the last or fi.rst 
of March ; I cannot tell the date. 

Q. Do you know whether or not Dr. Whitesides or Captain Mitchell 
were on the raid on the 9th of January ? 

A. What raid ? 

Q. The raid on Charley Leach and Charley Good ? 

A. No, sir ; I do not know. 

Q. Were you not upon that raid ? 

A. No, sir. 

Q. Did you ever hear them talk about it ? 

A. No, sir. 

Q. Do you live in that neighborhood? 

A. Yes, sir; I live abou^, a short mile from Mr. Wilson's. 

Q. Did you ever have any conversation with Charles Foster, at the 
time he and you came out of jail, about Dr. Whitesides? 



560 

A. About Dr. Wliitesides ? 

Q. Yes. 

A. No, sir ; I do not remember. 

Q. Did you ride home from Yorkville with Foster ? 

A. No, sir; I drove the wagon, and he rode in the wagon ; he rode 
in the wagon, and I was on the mule, driving. 

Q. Did you have any conversation with him, on that occasion, about 
Captain Mitchell or Dr. Whitesides ? 

A. I don't think I did ; don't remember. 

Q. Do you remember whether you did or not? 

A. No, sir ; I heard Mr. Foster state, before we left — 

Mr. Wilson. We object to declarations of Mr. Foster. 

The Court. He has given them already. 

Mr. Corbin. You have been swearing about the declarations of Foster 
here for a long time. 

Q. What did Mr. Foster say ? Go on. 

A. He said that he was a member of Mr. Mitchell's Klan. 

Mr. Corbin. Well, I don't want that. 

Q. In that connection, while you were driving home, was big Billy 
Wilson in the wagon, riding too ? 

A. Yes, sir. 

Q. Did you hear any conversation there about Dr. Tom Whitesides ? 

A. No, sir ; I don't think I did ; they was talking a little, but I was 
driving, sometimes in a trot, and sometimes hurrying to get home, and I 
didn't hear it. 

Q. You didn't have a conversation, and didn't hear any ? 

A. 1 heard them talking back in the wagon body about him being in 
jail, and so on. 

Q. Didn't hear talk about Dr. Tom Whitesides ? 

A. No, sir ; not as I know of. 

Mr. Melton. We were very anxious to close the testimony this evening, 
but a very important witness, whose testimony is not cumulative, has 
failed to appear, and we must ask your Honors to indulge us, becaust? 
his testimony is too important to omit. 

The Court. Is the witness in town ? 

Mr. Melton. Yes, sir. 

The Court. Then let us issue an attachment. 

Mr. Melton. He is a colored man, and I feel constrained to call your 
Honors' attention to the fact that we have great difficulty in keeping 
these witnesses. We have had one who has gone home because threats 
were made against him. 

The Court. Issue an attachment, and let him report such facts as that 
to the Court. 



561 

Mr. Melton. This is not the witness. 

The Court. Any witness. 

Mr. Corbin. If the counsel interested will give me the facts, every 
person who interferes in any way to intimidate and obstruct witnesses, 
sliall be prosecuted and indicted before this Court. 

Mr. Melton. I am perfectly willing to give the counsel the names of 
the witness and the parties who have interfered to prevent him from tes- 
tifying. 

The names of Kirkland L. Gunn and Charles W. Foster were given 
to the District Attorney, as having told Moses Edwards, a colored man, 
that, if he testified for Captain Mitchell, they would " make him smoke 
for it ;" and the Court ordered the names, with the evidence, to be sent 
before the Grand Jury. At half-past three o'clock the Court adjourned. 



Columbia, December 21, 1871. 

The Court met, pursuant to adjournment. Hon. H. L. Bond, pre- 
siding ; Hon. George S. Bryan, Associate Judge. 

TESTIMONY OF MAJOR GUITOjST. 

Major Guiton, a witness for the defense, being duly sworn, testifies as 
follows : 

Examination in Chief by Mr. Wilson. 

Q. Where do you live? 

A. In York County, Bullock's Creek Township, Avhere I have lived 
for the iast twelve months. 

Q. Where did you live last December ? 

A. At George Hood's, on Broad River. 

Q. Did it, at any time, come to your knowledge of any plan that was 
on foot for the burning of houses in that neighborhood ? 

A. Yes, sir. 

Q. From whom did you obtain that information ? 

A. Rueben Kennedy ; he is a colored man. 

Q. Where did he live ? 

A. At Bullock's Creek, on John Whitesides' place. ' 

Q. What did he tell you ? 

A. That there were two men in Union, Jim Peeler and Alfred Owens ; 
he said there ought to be several houses burned, because of stopping that 
killing. 

36 



562 

Q. Whose houses did he mention ? 

A. Dr. Tom Whitesides' was one house ; John Smith, Captain Mitch- 
ell and John M. Whitesides' was others. 

Q. On which side of the river are these houses ? 

A. On the York side. 

Q. Was anything said about other houses that were to be burned ? 

A. Sam JefiVey's, in Union ; John McCullough and Colonel Jeffrey's. 
Q,. Where do they live ? 

A. In Union. 

Q. How many houses, in all, was it proposed to burn ? 

A. Four in York County. 

Q. What time did you get this information ? 

A. About the first of December. I cannot exactly say when. 

Q. Did he tell you what was the plan, and what hour of the night 
those houses were to be fired ? 

A. He said it ought to be done at such a time of the night. 

Q. Do you know how many houses he mentioned were to be burned ? 

A. Four in York County, and three in Union, I think. 

Q. Did he state his object in telling you this ? 

A. Yes, sir ; he said it was very frightening to every man in the coun- 
try, this killing and raiding, and he said this was the plan to stop that 
killing. 

Q. Did you join in the scheme ? 

A. Not at all ; he did not ask me. 

Q. Did you communicate this information to any one ? 

A. I did to Esquire Hood ; he was the first man, and to Madison 
Small and Captain Mitchell. 

Q. How soon after it was told you, did you tell them ? 

A. Nigh as I can come at it, it was about three days. 

Q. At that time, had there been any killing on this side of the river ? 

A. There had not been any raid on this side at all. 

Q,. Do you know any parties who were engaged in that scheme, except 
the on,e that spoke to you about it ? 

A. I don't. 

Q. Were you at any time told by Captain Mitchell to give warn- 
ing to some colored people that violence was threatened them ? 

A. Yes, sir ; I was. 

Q. When was that ? 

A. I cannot exactly tell the time ; but it was some time after the raid 
was made in Yoikville. 

Q. Who \yere the persons that you were to notify ? 

A. Jack Dowden, Edward Guiton and Butler Askew. 

Q,. What did he tell you to tell them ? 



563 

A. He said he ■was going to Wiley's store oue day and found a paper in 
the road ; he picks it up and found three names written on the paper that 
were threatened; he told me to tell them I Avas very late that evening; 
that was Jack Dowden. I could not see the others. 

Q. What did you learn next morning ? 

A. The next morning I understood that Jack Dowden and my brother, 
Edward Guitou, and Butler Askew, had been whipped. 

Q. Do you know Captain Mitchell ? 

A. I have know^n him all my life, since I kneAv anything at all. 

Q. What is his character in the neighborhood ? 

A. He has a mighty fine character. 

Q. What is his character among the colored people ? 

A, A mighty fine character ; a mighty good character. 

Q. How was he disposed to act toward the colored people ? 

A. Like as if he wanted them to live and do well ; if they were re- 
sponsible people and wanted help, he would let them have anything to 
support them, and they were to go to him for it. 

Q. You mean that he was kindly disposed towards the colored peo- 
ple r 

A. He was. 

Q. What party do you belong to ? 

A. The Radical party. 

Q. Did you vote the Radical ticket the last election? 

A. Yes, sir ; I did. 

Q. What box did you vote at? - 

A. Hickory Grove. 

Q. Which is the strongest party at Hickory Grove ? 

A. The Radical party. 

Q. Were any threats used to hinder you and others from voting ? 

A. Never, sir ; he never hindered me. 

Q. Have you ever seen others hindered ? 

A. No, sir ; and I voted there all the time, 

Cross-Examination by Mr. Corbin. 

Q. Do you know Charles Foster ? 

A. Yes, sir. 

Q. Did you tell him, last February or jNIarch, right near your house, 
that you wanted him to circulate the information about that you were a 
Democrat ? 

A. I did not, sir; I can prove how I voted at the election. 

Q. Did you circulate round so that people might know what your 
polities were? 



564 

A. No, sir ; I didn't. 

Q. Are you sure ? 

A. Yes, sir ; I am. 

Q. Do you work for Captain Mitchell ? 

A. Ko, sir. 

Q. He told you he found this paper on the road about whipping these 
men? 

A. Yes, sir. 

Q. And he told you to go and notify them, did he ? 

A. Yes, sir ; he told me to go and advise them, but I had not time ; 
it was only about an hour and a half before sundown. 

Q. What day of the month was that ? 

A. I think it was in December, after Christmas. 

Q. Was it after New Year's day ? 

A. Of course. 

Q. How long after New Year's day ? 

A. I don't know exactly ; it might be about two weeks. 

Q,. Could it have been more than four weeks ? 

A. It might have been that long. 

Q. Where did he tell you that ? 

A. I passed his house, and he was feeding his stock when I passed, and 
we had the conversation. 

Q. He seemed to be anxious, did he, that you should go and tell those 
men t^o get out of the way ? 

A. He didn't seem anxious, of course, but he did not want them to be 
hurt. 

Q. How far did Jack Dowden live from you ? 

A. About two miles. 

Q. And it was about an hour and a half before sundown when he told 
you ? 

A. Yes, sir. 

Q. And you did not tell the others because you had not time? 

A. Yes, sir ; I wanted to get home ; I liad my own business to attend 
to, and I had been away ever since Saturday, and I only had time to tell 
Jack Dowden. 

Q. Captain Mitchell seemed rather anxious that you should go and 
see them ? 

A. He was not anxious, but, as he found out that they were threatened, 
he would like very well for them to know it, and he said he thought it 
was my duty to tell them. 

Q. Did he show you the paper he said he had found ? 
A. He said he had just picked it up, and when he had read it he threw 
it down. 



565 

Q. And these men, you say, were whipped that night? 
A. Yes, sir, they were. 
Q. What time ? 
A. I don't know. 

Q. Did you tell Jack Dowden who gave you the information ? 
A. I don't recollect now. 
Q. And did he then ask you who told you ? 

A. I told him there was a j)aper found on the road, and his name was 
on it, and Edward Guiton, and Butler Askew ; and I advised them to be 
particular, but I did not tell them that Captain Mitchell told me. 
Q. Have you told us all that Captain Mitchell told you ? 
A. Yes, sir. 

Q,. Why did you not go to tell them that the Ku Klux were coming? 
Did you not care anything about the Ku Kliix ? 

A. I didn't know when they were coming ; I only knew we were all 
frightened. 

Q. Didn't you then think it worth while to tell them that they were 
all threatened ? 

A. I did not know but it might be twelve mouths from that day. 
Q. You say you told Captain Mitchell and Squire Hood, and Dr. 
Whitesides that this colored nian, Kennedy, was going to burn them up; 
did you tell them who was going to do it ? 
A. I didn't know. 

Q. Did you tell them that Reuben Kennedy told you ? 
A. I did ; and I told all the. conversation between us. 
Q. And you had a good deal more anxiety about fires than about 
men being whipped and killed ? 

A. No, sir ; I did not ; for I was as much scared as any of them, by 
the Ku Klux. 

Q. And yet you did not tell your brothei^'he was going to be whipped ? 
A. If I thought I should not be belated, and that I might likely be 
killed myself, I likely should have told him. 
Q. Were you afraid of Captain Mitchell ? 

A. I was not afraid of him ; but I was afraid of the whole country. 
Q. Were you ever whipped ? 
A. No, sir. 

Q. You felt safe, didn't you ? 
A. No, sir ; I didn't. 

Q,. You say Kennedy got up this plan to stop the killing ? 
A. Yes, sir. 

Q. What were the politics of those two men that were killed in 
Union ? 



566 

A. I don't know exactly ; I never saw either of them; they were Rad- 
ical, I had heard. 

Q. And this plan, Kennedy said, was to get up these fires to stop the 
killing ? 

A. Yes, sir. ^ 

Q. Did he carry it out ? 

A. I don't know, sir. 

Q. Where is this man ? 

A. I don't know ; he moved away to Mississippi. I don't know what 
time, but it was after Christmas. 

Q. Did he stay in the country long ? 

A. Xo, sir. 

Q. Did the Ku Kluxever raid on him ? 

A. As I recollect, they were at his house one time. 

Q. Was that before or after this ? 

A. He told me before they ever went to his house. 

Q. How long before ? 

A. I don't know. I think he told me before Christmas, and they raided 
on him after Christmas. 

Q. What did they do to him ? . 

A.- I don't know ; but I understood they were there. 

Q. Had not Tom Roundtree been killed about that time ? 

A. I don't know. 

Q. How long before Christmas was it that Kennedy told yciu this ? 

A. I don't know exactly how long. I think it was some time in 
September. 

Q. What year was it ? 

A. It was last year. 

Q. Are you sure of that ? 

A. Of course. 

Q. Are you sure it was in September ? 

A. I think it was some time in September ? 

Q. How do you know it was in September ? 

A. I cannot recollect the date, because there has been so much done in 
the country ; I am not like a white man, but I know it was in Sep- 
tember ; all the citizens, wiiite and black, know it was in September 
when this thing began. 

Q. What began ? 

A. When these men were killed. 

Q. Are you sure of that ? 

A. That is my recollection. 

Q. It was after that killing that Kennedy told you this ? 

A. Yes, sir. 



567 

Q. And Kennedy lived on his place from September until these two 
men were killed in January ? 
A. Yes, sir. 

Q,. Where did he live ? 
A. At John Whitesides'. 
Q. Did he live there in September ? 
A. Yes, sir. 
Q. lu October ? 
A. Yes, sir. 
Q. In December ? 

A. Yes, sir ; he was there part of January. 
Q. Did he live there in February ? 
A. I don't recollect whether he did or not. 
Q. Did he live there in March ? 
A. I don't know ; but he was there Christmas. 
Q. Don't you know when he told you this plan about the burning ? 
A. It was some time in September. 
Q. Are you (juite sure about that ? 
A. Yes, sir. 

Q. When did he say they were going to commence ? 
A. He did not say. 
Q,. Did he tell you who was in it ? 
A. No, sir. 

Q. Did he say he was in it ? 
A. He said what ought to be don^. 
Q,, Did he tell you there was any fixed plan about it? 
A. He didn't. 

Q. But he thought it ought to be done to stop the killing? 
A. Yes, sir. 

Q. Did he tell you that it was a plan to stop the killing ? 
A. Yes, sir. 

Q. Did you agree with him ? 

A. No, sir ; I told him " you will make bad worse." 
Q,. You say you thought burning would make bad worse ? 
A. Yes, sir. 

Q. And you thought burning was worse than killing ? 
A. No, sir. 

Q,. Wliat did you advise him to do ? 
A. I had very little to say any way. 
Q. Was this conversation before or after he told you? 
A. It was after. 
Q. When was the election ? 
A. Some time in October. 



568 

Q. And it was after this election that he told you this burning was to 
stop the killing ? 

A. It was after the election in September or October. 

Q. Which month comes first ? 

A. September comes before October. 

Q. You say he told you in Sej)tember ; now you think it was in Octo- 
ber ? 

A. There was no election last October? 

Q. You know that as well as you know anything else, do you ? 

A. You ain't got me riy-ht. 

Q. How long after you heard that these two men, Owens and Kealer, 
were killed, was it that he told you ? 

A. I don't think it w'as longer than three days. 

Q. Are you sure it was before Christmas ? 

A. Yes, sir. 

Q. You say you told John P. Hood ? 

A, Yes, sir. 

Q. Is he at home now ? 

A. He was not when I left. He has been away six weeks or tw^o 
months. 

Q. Where is Madison Smarrs, that you also told? 

A. I don't know ; he is away. He went away about the time Squire 
Hood did. 

Q. Then Captain Mitchell is the only one left in that County you told 
it to? 

A. Captain Mitchell is the only one left. 

Q. What did they tell you they were going to do about it? 

A. They just told me that white and black ought to come together, 
and have meetings and make peace as they could ; that the two parties 
ought to come together and have peace. 

Q. Who told you that? 

A. Captain Mitchell said there ought to 'be a meeting, and come to- 
gether and try to have peace. Squire Hood and Madison Smarrs told me 
the same thing. 

Q Had the colored people been united with the w hite people up there ? 

A. Not as I know of 

Q. Do you know whether this man Kennedy ever set any places on 
fire ? 

A. I don't know at all. 

Q. Did you ever hear him charged with starting fires? 

A. No, sir ; I never heard of it. 

Q. Then he simply expressed his opinion to you ? 

A. Yes, sir ; of course — that is the way I take it. 



569 

Q. Was Jack Dowden, Edward Guiton and Butler Askew, Republi- 
cans ? 

A. Yes, sir; but Butler Askew didn't vote; he was too young. 

Q,. You say that Captain Mitchell sustains a good character with the 
colored people? 

A. He does. 

Q,. Did you ever hear that he raided on the colored pco})le and 
whipped them ? 

A. If he did I never heard it. 

Q,. Did you never hear it till he came here? 

A. 1 heard he was reported and went to prison j but I never 
heard anything after he was in prison ; I never heard he was accused 
of it. 

Q. Did Keller and Owens live right on the Broad River ? 

A. Yes, sir; Owens lived about six miles from me, and Keller lived 
about ten miles up Broad River. 

Q. The killing of these men made a gi'eat excitement in the County, 
did it not ? 

A. Yes, sir. 

Q. Did you understand that they were killed because they were Re- 
publicans ? 

A. I didn't understand that they were killed because they were Re- 
publicans. 

Q. When Tom Roundti'ee was killed, did that make much excite- 
ment ? 

A. There was so much excitement that I didn't know that that made 
any more excitement. The excitement was all over the State. 

Q. Did you hear what Tom Roundtree was killed for ? 

A. I understood he made threats, and he belonged to some kind- of 
League. 

Q. What were the threats ? 

A. I did not hear very much of the-threats, but they said he belonged 
to some kind of League, and that he said they ought to kill from the cra- 
dle up. 

Q. You don't yourself know anything about it, do you ? 

A. No, sir ; I know I was very much scared, and the only way was to 
get away and hide. 

Q,. When did you begi»i to hide out ? 

A. I was hiding out and watching all along that time. 

Q. Did you begin to hide out after the election ? 

A. Night after these men were killed. 

Q. Did the rest of the colored people hide out ? 

A. I do not know^ but, from what they told me, some of the women 



570 

and cliiklren went to the house of IMr. Siiuill, but most of the men lay 
out. 

Q. Did most of the colored people take their blankets out in the field 
to hide ? 

A. Yes, sir; that is what they tuld me they did. 

Q. (by Mr. Melton.) Did Captain Mitchell know what your politics 
were ? 

A. Yes, sir ; he saw me vote. 

Q,. Did Dr. Tom Whitesides know your politics ? 

A. Yes, sir ; he saw me vote. 

The defense here rested iheir case. 

TESTIMONY OF BUTLER ASKEW. 

Butler Askew, a witness for the prosecution, called in rebuttal, was 
duly sworn, and testified as follows : 

Q,. (by Mr. Corbiu.) Where do you live ? 

A. In York County. 

Q. Do you know Major Guiton ? • 

A. Yes, sir. 

Q. Did he tell you last Fall that the Ku Klux were going to raid 
on you ? 

A. He (lid not. 

Q. Did he ever give you any notice ? 

A. No, sir. 

Q, Did the Ku Klux raid on you ? 

A. Yes, sir ; they did. 

Q. State the particulars ? 

A. Five of them raided on me; they made me pull my shirt off", and 
whipped me. 

Q. When was that ? 

A. It was the third of February, Sunday night. 

Q,. Is that the only time ? 

A. Yes, sir. 

Q. Do you know what Major Guitou's politics are ? 

A. He was a Democrat till the last time, when he voted the Re- 
publican ticket, and he said he was sorry he ever did it, 

Q. When did he tell you ? 

A. Since this Ku Kluxing started — since Christmas. 

Q,. How long after Christmas? 

A. It was about a month after Christmas. 

Q. Did you vote ? 

A. No, sir ; I am not old enough. 



571 

Q. (by Mr. Melton.) I uuderstaud you to say that it wa-^ after the 
raiding commenced that he said he was sorry that he voted the Republi- 
can ticket? 

A. Yes, sir. 

Q. (by Mr. Corbin.) Was there any raiding done in that County be- 
fore you were whipped ? 

A. Yes, sir. 

Q. Do you know who was raided on ? 

A. Charles Leach, Pres. Holmes, Howell and Charley Good. 

Q. How long were they -whipped before you ? 

A. About three weeks. 

Q. Are you certain about the time ? 

A. No, sir. 

TESTIMONY OF JACK DOWTON. 

Jack Dowton, a witness for the prosecution, called in rebuttal, being 
duly sworn, testified as follows : 

Q. Where do you live ? 

A. With Madison Smarrs, in York County. 

Q,. How long have you lived there ? 

A. I have been there four years. 

Q. Did he tell you, any time last winter, that you had better look out, 
that the Ku Klux were coming after you? 

A. If he told me that I did not hear it— he never told me. 

Q. Did the Ku Klux come on you ? 

A. Yes, sir. 

Q. When ? 

A. About a month after Christmas. 

Q. Tell us about what time it was, and what they did to you ? 

A. They came there to my house, shot my dog and wounded him, and 
came and asked me if I belonged to the League ; I told them I did. 
They asked me if I belonged to Bill Kell's League ; I told them I did. 
They asked me what I joined for ; I told them because I thought it was 
all right. 

Q. What did they do to you ? 

A. They took me out and whipped me. 

Q,. Did they whip you severely ? 

A. They gave me about one hundred licks ; they didn't pull off my 
shirt. 

Q. Did you know any of them ? 

A. I did not know any of them — they had their uniforms on. 

Q. What was the uniform ? 



572 

A. Red horns — horns about two feet long — some stood strait up, and 
some hung down. 

Q. What did they tell you when they had done whipping you ? 

A. They asked me if I was going back to the League any more ; I 
told them I was not. They asked me if I was a Radical ; I told them 
I was ; they told me if there was a chicken-coop or anything burned, 
they would kill all us damned rascals. 

Q. Did you vote at the last election ? 

A. Yes, sir ; I voted the Radical ticket. 

Q. ^Yere there any more raids on that {)lace ? 

A. Butler Askew was whipped the same night I was. Charley Leach 
Avas whij^ped a good while before I was. 

No cross-examination. 

TESTIMONY OF CHARLES FOSTER. 

Charles Foster, a witness for the prosecution, called in rebuttal, being 
duly sworn, testified as follows : 

Q. (by Mr. Corbiu.) Will you state all the particular circumstances 
that occurred on the night that you and Dr. AVhitesides, as you have 
testified, went on that raid previously to your going to the place of meet- 
ing ? 

A. On the evening before I was sent for by Milton Watson, to come 
up to his house and bring my disguise — they wanted to make their dis- 
guises by the same pattern ; and Miss Rose Leach, and Miss Jerusha 
Moss and Miss Mary Watson, assisted in making the disguises. As 
there was no saddle for Dr. Whitesides to ride, he asked me to go and 
borrow a saddle. I said, certainly, I would, and I weni and got one. 
He followed and met me on the top of the hill, between where we lived 
and Samuel Small's. I met them there. They were not disguised at 
that time. We put the saddle on Dr. Whitesides' mare, and went on 
then to the ferry. Dr. Whitesides said to me, " why didn't youbringsome 
whiskey ?" Said I, " that is your business." Said I, " I have a little." 
We Avent over the ferry and on to the road. 

Q. Can you fix the time, with any certainty, when that was ? 

A. I am not positive about the date, but it certainly can be identified, 
by loi iking over some dates that were done in the country. As well as I 
can recollect, I think the moon rose about eight or nine o'clock. 

Q. Have you had any conversation with Dr. Whitesides here in Co- 
lumbia, since you came down ? 

A. Yes, sir. 

Q,. State what it was ? 

A. He met me at the corner grocery, rode by and asked me to take a 
drink of whiskey ; I did so, and went back into the room — into a private 



573 

box, and afterwards we retired into the back yard ; he asked me if I wa 
going to come right square out ; I said, " wait till I go on the stand, and 
hear what I say." 

Q. When did that occur ? 
A. Some time the week before last. 
Q. Has he approached you since that time ? 

A. Nothing more than speaking to me ; he has sent a friend of mine 
to me. 

[Testimony objected to.] 
Q. Who came to you ? 
A. Mr. Lawson B. Davis. 

Q. Was anything said to you about twenty-five dollars ? 
A. Nothing more than what I have stated ; Mr. Billy Wilson can tell 
you the result of that. 

Q. Do you know Julius Howe ? 
A. Yes, sir. 

Q. Is he a Ku Klux, or not ? 

A. Whether he has been sworn in I do not know. I saw him on a 
raid leading a Klan. 

Q. He would not be leading a Klan of Ku Klux if he had not been 
sworn in, would he? 

A. I don't suppose he would. 
Q. About what time was that ? 

A. About the twenty -ninth of January, or the first of February ; it 
was the second raid that I was on. 

Q. Did you have any private talk with Captain Mitchell ? 
A. Wilkinson and Dr. Whitesides sent for me, the day I was put in 
prison, to come to the third floor ; they were in the Doctor's room, some 
twelve or fourteen of them, when I went up ; Sergeant Cor bin said to me 
that several of the boys wanted to see me, and some one asked what I 
had said to Major Merrill ; and I said I had told all I knew about it. 
Q. Who was that ? 

A. I don't know, but I think it was Captain Mitchell. 
Q. What 'Hdhesay? 

A. He said if you had staid here, I had stood some chance, but, as it 
is, you have stuck me in for five or six years. 

Q. Do you know anything about the raid made on Captain Mitchell 
by the Ku KUjx ? 

A. I know but little ; some of the members of Parker's Klan Avere 
said to have done it ; thei-e was said to 'be a man by the name of Wil- 
liams ; they were thought to be spies and detectives of the Ku Klux, and 
during this time, John Roberts, a member of Parker's Klan, was ordered 
to meet Milton Watson and myself, and we went to Mt. Vernon Church ; 



574 

the members of the Klan were partly disguised, and went in pursuit of 
these men, but they failed. I staid all night at Smith's place with Mil- 
ton Watson, and the balance of them staid at th6 grocery ; their dis- 
guises were left with me ; the parties had their disguises on when they 
came up. 

. Q. What do you know in reference to their searching for Williams at 
the house of Captain Mitchell? 

A. I heard afterwards from Edward Leach ; he is a member of the 
Klan ; he said they had found the man, Williams, at Mitchell's house ; 
they had found his papers, and they searched him thoroughly and 
found him all right. 

Q. Did they go in disguise for him ? 
A. I think they did. 
Q. When was this ? 

A. It was last Winter. I want to state about those disguises left with 
me at the grocery. They were left there until the night after this, and I 
had taken the disguises and rode to Milton Watson's, and then I took 
them to Captain Mitchell's house, and then to him in person. 

Q. At the time you were released from jail at Yorkville, who did you 
go home with ? 

A. Wm. Wilson and Thomas Bolam — I rode in the wagon and Wil- 
liam Bolen drove the wagon. 

Q. Tell us whether you told anything in the jail there at Yorkville, 
while you were there, that you were mistaken about Dr. Whitesides' 
being on the raid ? 

A. There might have been some talk ; I drank a good deal of whiskey 
while in Yorkville, and I might have said some such thiug. When I 
made up my mind to confess, I made up ray mind to tell the truth and 
nothing but the truth. 

Q. Did you tell Dr. Whitesides, when you left the jail, that you would 
go up to Major Merrell's, and make some statement to him ? 

A. I told Dr. Whitesides that I was going to Major Merrell's head- 
quarters, but I did not remember saying anything else ; my brother was 
with me, and he can tell, I reckon, what was said. 
No cross-examination. 

TESTIMONY OF WILLIAM WILSON. 

I reside in York County ; I lived there all my life ; I know Charles 
William Foster; I rode home with him from Yorkville when he was re- 
leased from jail ; he rode in my wagon ; Tom Bolen was along and drove 
the wagon. 

Conversation between the parties \s'sl» objected to, and the objection 
was sustained. 



575 

TESTIMOXY OP T. L. GUXX, IX REBUTTAL. 

I was present at rendezvous when they went on the Bill Kell raid, and 
saw Captain J. W. Mitchell there, and Charley Howe. I remember a 
remark of Captain Mitchell: "I have a bag of cotton." T thought they 
were disguises. He said he was going to the grocery for whisky, or some- 
thing of that kind. The sack would have held about twenty-five pounds 
of cotton. After the raid I saw him put disguises in that tag. After 
the raid had been given up, and we turned to go home, it was then that 
I saw him put the disguises in the bag. The Bill Kell raid was, I think, 
some time in January. 

TESTIMONY OP AMOS HOWELL, IN REBUTTAL. 

I live at Mr. Sam. Howell's, in York County, and have lived there all 
my life. I shall be twenty years old to-morrow, and have never voted. 
The Ku Klux made a raid on me last winter and whipped me It was 
either the 25th, 26th or 27th of January. It was the same night that 
Charles Leach, Press. Holmes, Charles Goode and Jerry Thompson were 
whipped. They also whipped Wiley Edwards. I saw all these men the 
next day. They whipped me very bad. They came to my house and 
tried to knock the door down. I jumped up and opened it as soon as 
I could. One stepped up and held a double-barrel shot gun at me, and 
then another put up his gun at me and said, " God damn you ; I believe 
I'll shoot you."v Then they took me and whipped me, and gave me about 
fifty lashes. 

TESTIMONY OF ELIAS RAMSAY, IN REBUTTAL. 

I know Robert Riggans ; he was elected chief of a Ku Klux Kian ; 
he was on one raid when I was witli him ; he was elected chief at Sharon 
Church, on the first or second week in May last; they made a raid at 
McConuellsville, when Jim Williams was hung; Robert Riggans was on 
that raid, and was disguised ; I first met him about two miles from where 
I lived, on the side of the road ; I am w^ell acquainted with him, and live 
only about a quarter of a mile from him. I know John Millar ; saw him 
at Sharon Church, at the meeting of the Klan, when they met to organ- 
ize the Ku Klux Klan. 

TESTIMONY OF JOHN ROBERTSON, IN REBUTTAL. 

I live in Chester County now ; last winter I lived in York, on Mr. 
Billy Watson's place; I left Mr. AVilson's on the 5th of March, and went 
to Chester; I saw Dr. Whitesides at Chester about three weeks ago ; lie 
told me he was mighty glad to see me; he talked to me and Gyles Good, 



576 

another colored man, and he said to me: "If we damned niggers didn't 
get him out, he was gone up ;" he was then on his way here, and was 
under a guard of soldiers. 

TESTIMONY OF MRS. WILLIAM WILSON, IN REBUTTAL. 

I am the wife of William Wilson, and reside in York County. The 
first raid that was made on our place was on Jim Crosby, on the 
20th of January, as well as I recollect. Jim Crosby was whipped, and 
some guns were bi'okeu belonging to him and John Robertson. 
The next raid was on the od of February.' Our dog was killed ; the 
house was surrounded, and they took my husband out, and they shot 
under the house. I am able to fix that day because my baby was born 
in the evening, at four o'clock, and they raided on me that night. There 
w^as another raid just three weeks from that time, and the same night 
Mary Thompson was whipped, for they told me next morning that she 
had been whipped. Next they came to our gin house, when they said 
they were hunting for John Robertson, Mary's husband ; and they raided 
on us again about a week after that time. They took Jim Crosby out of 
his house, a piece off, and made some threats. Jim Crosby himself told 
me next morning. 

The prosecution here announced that they rested the case. 

Mr. Corbin said that, with the permission of the Court, he would not 
occujjy their time with any opening argument. The counsel representing 
the defendants might open the argument, and Mr. Chamberlain would 
close. 

ARGUMENT OF MP.. W. B. WILSON. 

Mr. W. B. Wilson, counsel for the accused, Thomas B. Whitesides, 
said : 
May it please the Court and Gentlemen of the Jury: 

The client which I represent in this case, Dr. Thomas B. Whitesides, 
asserts his innocence, and respectfully, but wnth confidence, submits to an 
intelligent Court, to the frankness of an able counsel, who represent the 
Government, and to your sense of justice and right as jurors, that he 
should have a verdict of acquittal. 

We are not here to defend or excuse crimes that shock and disgrace 
humanity. I have listened with amazement, and with disgust, to the tale 
of horror that has been narrated to the Court. My client, Dr. White- 
sides, utterly denies that he was a member of the Ku Klux organization. 
He denies that he ever participated in any of its outrages or its acts of 
violence. I am sure, gentlemen of the jury, that you will remember 
that the evidence comes from prominent witnesses on the part of the 
Goveruraeut, but that he denounced it as the most damnable thing that 



577 

ever existed ill auy countiy. This cleuunciation was made ; when? Not 
in the day of its panic and disaster, when the angry power of the Fede- 
ral Government burst upon it like a thunderbolt from a clear sky, but 
on the first of March, '71, when it was in the first blush of its strength 
and terror ; when it required a man of nerve to face it ; and it was then 
that Dr. Whitesides denounced it. To whom ? To its sworn and active 
members. The Government witnesses telF you that, and upon that we 
stand. 

In the defense of Di-. Whitesides, it is not necessary for me to discuss 
the legal questions in the case. I submit and trust his case upon the 
issue of fact. 

I deny his guilt, and I ask you, gentlemen of the jury, in patience, to 
listen to a synopsis of the testimony offered on the part of the Govern- 
ment, and on the part of the defense, and then decide as to the guilt or 
innocence of this prisoner. 

Mr. Wilson then presented to the jury a synopsis of the testimony of 
Wilson Davis, who showed a perfect familiarity with the names of those 
belonging to the Ku Klnx organization in the vicinity where Pr. White- 
sides resides, and he states he never saw Dr. Whitesides in a Ku Klux 
Klau. 

The most important witness of the Government, perhaps, Mr. Gunu, 
as late as March, 1871, gave Dr. Whitesides the Ku Klux signs, but he 
was unable to respond to them. Mr. Gunn then commenced talkino- 
with my client, and he denounced it as the most damnable thing that 
ever existed in any country. 

The next witness rushes to the witness stand to rescue himself from 
prosecution, Charles W. Foster. He admits that he has been in the 
very depths of this abyss ot' crime and outrage upon those unfortunate 
and often innocent persons who were lashed and tortured. He comes 
here a swift witness against a man he is disposed, for some unknown 
reason, to hunt down; but, gentlemen of the jury, that God who has per- 
fect cognizance of the true facts of the case has completely crushed the 
testimony that he gave against Dr. Wliitesides. 

Mr. Wilson here detailed the evidence of the various Avitnesses who testi- 
fied that, on the night of January 9th, 1871, when Foster swore he was 
with the raiding party that whipped Ciiarles Leach, Dr. Vv^hitesides was 
attending the sick bed of old Mrs. Mitchell, in company with Dr. Dar- 
win and Capt. Mitchell, whei^e he spent the entire night with Mrs. 
Mitchell, and breakfasted at the house in the morning before he left. 

These facts, the counsel contended, were all corroborated by the testi- 
mony of Dr. Darwin, Mrs. Howe, Miss Howe, Mrs. Mitchell, Samuel 
Mitchell and Mrs. Whisouant. 

Foster testified that Dr. Whitesides was on the raid on Charles Leach, 
37 



578 

and that he was ou no other. Foster saw, on that raid, a man he took 
for Dr. Whitesides ; that all the party, excepting three, (not including 
Dr. Whitesides, ) were disguised with masks and gowns. Foster did not 
ride near Dr. Whitesides, who rode, he says, in front, while he, Foster, rode 
iu the rear. Foster did not recollect that the moon was shining, and he 
admits he did not speak w'ith Dr. Whitesides. 

On Foster's recall this morning he says that he spoke with Dr. White- 
sides while on the raid, and asked him whj'hedid not bring some whisky, 
none of which did he testify to on his direct examination. The only 
possible presumption is, that Foster was mistaken in the disguised Ku 
Klux with whom he says he spoke; for it could not possibly have been 
Dr. Whitesides, unless every one of the various witnesses who saw him 
at Mrs. Mitchell's, on the night of the 9th January, 1871, had j^erjured 
their souls by false testimony. 

Again, Foster is shown by other witnesses to have said in jail that he 
was mistaken in saying that Dr. Whitesides was on that raid, and wit- 
ness swore that he said he would go to Major Merrill and rectify the 
mistake; ^hat they heard him also — after he got out of jail, and was 
going to Colonel Merrill's, in reply to Whitesides' request not to neglect 
to fix that matter — say, I will go right straight now to Colonel Merrill's 
and correct the mistake. When Foster, in his testimony, stated that he 
said to Whitesides, "I am going to Major Merrill's," I asked- him the 
question, "did you not say that you were going to correct the mistake?" 
his reply was, "I don't recollect." Gentlemen, we have put up wit- 
nesses who do recollect. Now, it is claimed that one of those witnesses 
was a Ku Klux. What was Mr. Foster but a Ku Klux ? If that is to 
discredit Riggans, the same objection will apply to Foster. But we put 
up other witnesses who tell you that they were not Ku Klux. 

Well, now, here is the admission of Mr. Foster himself, that he was 
mistaken; that he is satisfied that Dr. Whitesides was not on that raid. 

You have, gentlemen of the jury, the strong probability that Foster 
was mistaken iu supposing that Dr. Whitesides was on that raid that 
night. You have Mr. Foster's positive admission that he was mistaken, 
and that he would go and correct the mistake; and then, to crown all, to 
dissipate all doubt upon your minds, you luivo the positive testimony of 
Dr. Darwin, ]\lrs. Howe, Mrs. Whisonant. Miss Howe and Charles 
Mitchell, proving that he could not have been there, because he was 
somewhere else. I think that disposes of Foster. 

The next witness was Mary Thompson. She does not speak of this 
raid of the 9th of January, 1871, and she does not specify any particular 
date^ She says she saw two men with masks and gowns on, and one of 
the men was Dr. Thomas Whitesides. She was undoubtedly in a state 
of alarm and terror, and doul)tlcss fAie thought it Avas Dr. Whitesides 



579 

although his face was covered and it was iu the night. How eas}' for her 
to be mistaken. 

Jim Crosby al:jO testified that it was Dr. Whitesides. Well, how does 
he know? " Why do you think it was Dr. Whitesides? Did you see 
him to recognize him ?" " No; but I saw a traclc, and I thought it was 
Dr. Whitesides' track." 

Now, gentlemen, did we offer nothing to rebut this testimony, I am 
sure you would receive it with hesitation ; but there was a witness, Mr. 
Thomas Bolen, whose testimony was given in full, at Yorkville, to Col. 
jMerrill. He tells you the whole story — he goes upon that stand — he takes 
a solemn oath that he was a Ku Kluxing ; and that he was with that 
party — he names them all ; and he says that Dr. Whitesides was not 
there. Here you have positive proof by a Ku Klux, a Government wit- 
ness, whose confession the Government has taken, who tells you that Dr. 
Whitesides is innocent. Tom Bolen was a Ku Klux ; he was familiar 
with the Klans of the country ; he knew the names of their men — of 
their Chiefs. Was Dr. Whitesides a Chief? " Did he belong to any 
Klan ?" " No, sir ; I never saw him ; he was never on any raid." Why, 
even Charles Foster admits that; he says he was never on any raid, ex- 
cept on the ninth of March. 

There was a witness who fixed the date, the 25th of January — a young 
man by the name of Amos Howell. He may have been whipped on that 
night, but that testimony, if it was offered to change the date to the 9th, 
certainly can amount to nothing. The testimony of every witness of the 
Government proved conclusively that it Avas the 9th, and whether Amos 
Howell was whipped on the 25th or not is wholly immaterial. The 9th 
w-as the date first fixed by the Government witnesses ; Charles Foster and 
his testimony was taken down — swears that it was on the 9th of January, 
1871, and it cannot now be altered to the 25th of January. 

Gentlemen, I ask you that, in the presence of your oath — your solemn 
oath — that oath which invokes the Almighty to witness that you shall 
honestly decide this case — in the presence of that solemn oath — what 
other motive can a Juror have in the discharge of his high functions, but 
to be controlled by simple obedience to truth and duty. The United 
States Government cannot, do not, ask that the innocent be convicted, 
or to inflict its penalties upon any but the guilty ; and if, in this time of 
high party excitement, you can soar above the passions of the hour, and 
the prejudices of race, you will vindicate before the world, and in the 
noblest manner, your claim, your fitness for all the privileges of the 
American citizen. 



580 

ARC4UMENT OF C. D. MELTON', ESQ. 

May it please the Court and Gentlemen of the Jury: 

There are two leading points in this indictment. The one is a charge 
of general conspiracy, with intent to violate the first Section of a desig- 
nated Act of Congress, by unlawfully hindering, and preventing and re- 
straining divers male citizens of the United States, of African descent, 
from exercising the right and privilege of voting, and by other unlawful 
means in not allowing them to vote. That feature of the indictment 
charges no specific act against any person. The Court has ruled, and 
Avill so instruct you, that the mere fact proved that any man is a member 
of an organization, having such objects, is sufficient to warrant your con- 
viction of him on the first count. The other features, which covers the 
three additional counts in the indictment, are the features which charge 
a special conspiracy against an individual member of the community, 
named Charles Leach. So that your duty, in the investigation of this 
case, is first to determine as to these defendants, and particulary as to 
Captain John W. Mitchell, whom I represent, whether he was a member of 
any combination, the purpose of which was to interfere with the right of 
African citizens to vote. 

In the face of the testimony offered here I cannot stand before you and 
say that John W. Mitchell has not been a member of the Ku Klux 
organization. It is stated by Foster that he was present when he was 
admitted into the order ; and that testimony stands uncontroverted. It 
is stated by Foster that he recognized him on a certain raid. Tjie raid 
here charged is that upon Chas. Leach, and it is stated by the witness, 
Gunn, that he was with that Klan, or some Klau, at Barclay's Hill, and 
by another witness, that he saw him at that meeting. 
■ In the face of these facts, which we have not been able to controvert, I 
cannot ask that you should listen to me in submitting any argument or 
denial that he was a member of this organization. 

But, gentlemen, he makes, by his plea of not guilty, a denial that that 
organization was ever designed or intended to interfere with African citi- 
zens as a class, and to prevent them from exercising the right of citizens 
to vote, to bear arras, and to discharge all other duties pertaining to citi- 
zens. That is what the Government has to prove ; and whilst I am com- 
pelled to admit that my client belonged to that order, I have a right to 
ask you, gentlemen, that you shall require of the Government proof that 
that order had the objects charged in this indictment. How do they pro- 
pose to prove it ? Do they ppove it by the constitution of the order? It 
doesnot appear there ; on the contrary, that constitution sets forth the 
purpose of the order to be of a diftereut character altogether. It abjures 
the application offeree, and it does not seek to resort to any unlawful 



581 

means, or designs, or purposes, in carrying out the ol)jects of the order. 
AVas it political ? Perhaps it was. But was not the League political? 
It does not follow because an association is secret in its purposes, secret iu 
its meetings, that it is, therefore, necessarily obnoxious to hnv. You must 
look at the organization, at the constitution of the order, to find what its 
purpose is ; and I say, gentlemen, you do not find there that it had any 
such pui'pose. 

But what does the Government do in the next step ? They undertake 
to show you, by the admissions of members of the order, that they under- 
stood that such were its purposes. Very well, if those members understood 
it they were guilty of a violation of the law in having become associated 
with it ; but does that agreement bind him who did not understand 
it? 

Now, gentlemen, if it appeared in the constitution of the order that 
such was its purpose, every man who joined the order knew its purposes ; 
but if it rests alone in my conscienc6 to know what I understood to be its 
oljject, then that alone atiects me, and does not affect you who did not so 
understand it. 

Has the Government proved to you that John W Mitchell regarded 
this combination as one which had for its purpose the interfering with the 
right of African citizens to vote? How, then, can it charge J. W.Mitchell, 
even under the first count in this indictment, of having been a memberof 
this organization which had that for its object? Why, gentlemen, where 
is the thing to stop? They will not confine it alone to interfering with 
the right to vote, but with interfering with all other rights ; not only in- 
terfering with citizens of African descent, but of every other citizen ; and 
not only citizens entitled to vote, but those not entitled to vote. 

I say it is an unfair mode of ascertaining the purpose of this organiza- 
tion. 

What, then, is the next mode ? By acts which members of the organi- 
zation committed ; and the great body of testimony which the prosecu- 
tion has here oftered has been directed to developing the manner and 
enormity of the outrages which individual members of the organization 
committed. But does that charge those outrages as being committed for 
the purpose of the organization ? 

I suppose many of you are members of the Union League, which is a 
somewhat similar organization, and a political organization, but I am not 
prepared to say an improper organization. But I ask you if it should 
l)e charged upon ten, fifteen or twenty members of the League, that thev 
had gone out in the community and committed violence, blood-shed and 
incendiarism, would you feel that it was fiiir to charge that it was the 
purpose of your League that blood should be shed, that houses should be 
set on fire ? You would know that that was not the purpose of the 



582 

League, and that the League had uo such design, even although you 
may have kuown of such instances. Pei'haps members of your League 
have gone to those of your color, and have said you shall not vote the 
Democratic ticket. I have heard of instances of that kind, and I doubt 
not that you have heard of them. But who is responsible for things of 
that kind? An individual member may have committed such an act, 
but was it a feature of your League? Was it any purpose of your 
League? Why, then, charge upon the whole organization those acts 
which a few misguided, vile miscreants undertook to perpetrate ? Was 
ravishing helpless women a part of this conspiracy? And yet you have 
been made to believe so, if you are to be guided by testimony of that 
kind. We have had here, from women, details of the most disgusting 
character, put forward for the purpose of showing from this act that rav- 
ishing women was one of the purposes of this organization. 

Now, I ask you, do you believe it, and that there did exist upon the 
face of God's earth an organization which would have among its purposes 
that of committing these gross outrages upon helpless women? 

What, then, is the meaning of these outrages ? They mean uo more 
than that this unfortunate organization — I say unfortunate, because it 
was unfortunate in its conception; it was unfortunate in its mode of un- 
dertaking to carry forward what were its legitimate purposes, in under- 
taking to carry them forward by disguises and pass words, which would 
afford reckless men opportunities for mischief — it means, gentlemen, 
nothing more than that in that order there were found men who were vile 
and low, and who, under the protection of the gown and the mask, un- 
dertook to carry out their own purpose of lust, and their own private 
vengeance. 

Now, gentlemen, if John Mitchell was connected with any outrages of 
this character, or if the prosecution has carried home to him, under the 
first count, a knowledge of such acts as within the purposes of his con- 
spiracy, you may convict him if you choose so to do; but I say to you, 
gentlemen, that unless you are satisfied that these outrages upon the 
rights of the colored people — or of the Radical party, if you choose so to 
consider it — was a part of the constitution of the order, you have no 
right to say that John Mitchell is proved to have entertained any such 
purpose as that, unless you show that he himself was at some of the out- 
rages. Men may organize for any purpose. The order , of Masons, aud 
Odd Fellows, to say nothing of the League, of which I have already 
spoken, are organizations existing all over the country. From those 
organizations every day come forth men who depart from the order. 
Why, gentlemen, the world is now almost convulsed by the mischievous 
results of such an organization — an organization designed, no doubt, for 
beneficial purposes — an organization of the working men of the country, 



583 

which exists in France, in Germany, and all the nations of Europe, and 
Svhich to-day is existing in this country — an organiziition which finds as 
a champion one whom you of the colored race have reason to 'regard as 
the man who, above all others, has devoted his life to your interests — I 
speak of Wendell Philli^)s — and yet, that society whose purposes he is 
endeavoring to impress upon the people of the country — that very organ- 
ization is one upon whose members has been charged the outrages which 
signalized the recent burning of Chicag(>, and which, in the city of Paris, 
consummated outrages which made the civilized world blush for shame. 
That same secret organization is now advocated by one, of whom, let 
people say what they will, they cannot deny to him honesty of heart and 
purity of purpose. 

Now, gentlemen, if you understand my argument, before you convict 
my client under the first count, even admitting that he was a member 
of the order, you must be satisfied that the order of which he was a 
member had for its purpose the hindering, preventing and restraining 
of male citizens of the United States of African descent, who are "quali- 
fied to vote, from exercising the right and privilege of voting ; and I say 
to you, gentlemen, that that purpose appears not in the constitution, and, 
if it appears by the testimony of other menibers of the order, I say 
that there is no testimony that it was so understood by Mitcliell, and, 
if it is proved that members of the order have committed outrages of 
this foul character, unless you shall be satisfied, under the subsequent 
counts in the indictment, that Mitchell was so engaged, we have a right 
to claim at your hands that he shall be acquitted, even under this first 
count. 

I wish, gentlemen, that it could have been so that I could place 
Mitchell upon the stand himself I feel, gentlemen, that in this inves- 
tigation now going on in reference to theseoutrages, it would be to the 
interest of truth and justice, if we could hear from the mouth of this 
defendant himself, what was his connection with this order. But such 
is not the laAV. The defendants who come into this Court come with 
their mouths sealed ; not a word are they allowed to utter to explain 
their conduct, their motives, or their purposes. 

Gentlemen, I have no hesitation in saying that in that order are 
found some men of as pure and noble character as are found in the 
land. Why are they there? Because the foul miscreants who traversed 
the country, interfering with the laboring population, forced the em- 
ployers of the colored people to go into the ranks to secure their 'own 
laborers from these outrages. They have gone into the order for the 
purpose of using their influence to prevent the consummation of these 
outrages, and to endeavor to control those who were running rough-shod 
over the best interests of the country. I would have been glad, gen- 



584 

tiemen, if I could have placed the defendant on the stand. Perhaps he 
could have told you why he was at Barclay's Hill ; perhaps he could 
have told you why it was that that raid, which was attempted on that 
night, was prevented ; who it ^Avas that prevented it ; and perhaps he 
could have told you of other raids where he was when mischief was pre- 
vented ; where the whole party was induced to desist from their purpose 
and to go hoaie. Cannot such a thing be ? Yet, I do not complain of 
the law. I am always content with the law as it is. But, gentlemen, 
my client is without the opportunity of saying anything in his own 
behalf. What was his understanding of the purposes of the organiza- 
tion ; what was its purposes and what the extent of his connection with 
its operations, you cannot know, for he is not permitted to tell you. 
When his mouth is thus closed, you should ask, at least of the Govern- 
ment, that they should fasten upon him, beyond reasonable doubt, the 
acts of criminality which would authorize you to find him guilty. This 
is not the only case in which he is indicted. It is in testimony here that 
he has been spoken of as the Chief of his Klan, and you have heard 
indictment after indictment read, in which his name appears. If, then, 
gentlemen, he has been guilty of any of these outrages with which he 
is charged, you may be well assured that he will be, in some one or other 
of them, reached. 

I now ask your attention, gentlemen, to the fact that he is charged 
with having been a participant in this raid upon Charles Leach. Do we 
find anvthing in the testimony of Charles Foster, which connects John 
Mitchell with whipping Charles Leach. He did not recognize Mitchell 
at Howell's Ferry ; he only says, that others in the crowd spoke of 
Mitchell. Is that sufficient testimony to warrant you in finding a ver- 
dict of guilty against him ? I think I am not mistaken, when I state to 
vou that that testimony of Foster, unsatisfactory as it is, is the only par- 
ticle of testimony in the whole case to show that John W. Mitchell was 
on that raid. 

On the. other hand, what do we show you? What was the date which 
the witnesses for the prosecution fixed at the outset? The very day 
which we knew to be the day when Charles Leach was whipped. You 
recollect well that Foster fixed it on the 9th of January. Our own wit- 
nesses fixed it on the same night ; and on that night John W. Mitchell 
was at home with his sick mother, and sat up with her all night. 

Gentlemen, it will be asking too much of you by the prosecution, to 
assume for one moment that we have failed to connect on testimony of 
an alibi, with the correct date of this outrage upon Charles Leach. 

If you believe our testimony, John W. Mitchell is not guilty of hav- 
ing been present at this raid. I trust he may be as successful in estab- 
lishinff his innocence of anv other of the several charges which have 



585 

hcen brought against hi n. I would be sorry to believe that one who has 
lived as long as he has, and who has sustained the chdfe-acter that he has, 
should forfeit it by being shown to have lent any sort of aid and coun- 
tenance to the perpetration of such outrages upon these people, who are 
comparatively helpless and ignorant — who are dependant upon the kind 
offices "of those who are more favored than they have been, and who have 
heretofore received kind offices of him, who here, to-day, sustains a char- 
acter of uniform kindness towards them. I shall be sorry, if he fails to 
sustain his innocence in connection with every other charge brought 
against him. 

I feel well assured, gentlemen, that, under the sanction of your oaths, 
you can honestly say that he is not guilty of this outrage. Having said 
this much, I leave his case in your hands. 



Columbia, December 22, 1871. 
The Court met pursuant to adjournment. Hon. Hugh L. Bond pre- 
siding. Hon. G. S. Bryan, Associate. 

ARGUMENT OF ATTORNEY GENERAL D. H. CHAMBERLAIN. 

May it please the Court and Gentlemen of the Jury : 

We are now approaching the conclusion of another long trial. I can- 
not forget that this trial is similar, in many of its features, to another 
which has recently been presented to this Court, and to another jury ; 
but I ought to remember, in presenting this case to you to-day, that it is a 
new case, and that I am not to assume that any part of this case, or any 
features of this conspiracy, about which this discussion is about to be 
had, are known to you. I am not to suppose, gentlemen of the jury, 
that you, sitting here upon this panel, have any knowledge of this case, 
or of this conspiracy, except what the Government and the defense have 
presented to you during th"^ progress of this trial. 

I don't forget that there are some faces before me that were before me 
in the former case, but yet, this trial concerns new defendants, it rests 
entirely upon new evidence, and it is necessary for you and me to remem- 
ber that we are to try this as an entirely new case, and it devolves upon 
me a labor which I could wish to avoid, that of again presenting to you, 
fully and completely, so far as I am able, the features of this conspiracy, 
its intentions, its purpose, its methods, and its operations, and then to 
see vvhat comiection tliese two defendants have with this conspiracy. 

I have, gentlemen, the same feelings, in commencing this trial, which 



686 

I had in the former case. These prisouers have been well defended — de- 
fended by as much ability and as much eloquence as the profession of 
South Carolina can boast. Whatever there is of law or of evidence 
which tends to show that these two defendants were not connected with 
this conspiracy has been presented to you ; and it is a pleasure to me to 
express my great respect both for the ability, the irhgenuity and the elo- 
quence with which my friends, the counsel for the defense, have presented 
the case to you. I can have no feeling, therefore, that I shall unduly 
urge this case on behalf of the Government. I have not the ability, I 
fear, to equal their eloquence or ingenuity in the prosecution of the case 
in behalf of the Government. 

But, gentlemen, there is one feature which draws a broad line between 
this and the former case. These two men who are before you to-day are 
nobody's dupes. They are not thoughtless, uneducated, ignorant and in- 
experienced young men. They cannot plead any exemption from the 
full responsibility of what they have done, and what they intended, on 
the ground that they occupied an humble position in society, and that, 
when they found that community swept by the terrible tornado of this 
conspiracy, they were driven into it against their judgment and their 
principles. These men, gentlemen of the jury. Dr. Whitesides and Cap- 
tain J. W. Mitchell, are men of standing, men of substance, and men of 
education ; men who have been accustomed to lead and influence the 
community of which they formed apart. It is not necessary for 
rae to say to you that the United States does not seek to convict 
these men, unless the evidence and the law point to their guilt. The 
Government does not ask for vengeance or for blood ; but when we do 
meet a case like this, of men concerned in a conspiracy with intent to de- 
prive whole classes of the community of their rights, and find they are 
men of repute, and men of influence, the Government says, and the con- 
science of every man says, that then, if ever, the full'measure of justice, 
the full responsibility for acts done and purposes planned, is to be visited 
upon such defendants ; and, therefore, it is that I have another feeling 
which I dW not experience in the last trial, not only that I ought, in justice 
to this cause, but that I can feel honestly that every particleof evidence and 
every principle of law should be pressed to its full and just conclusions 
as against these defendants, defended, as they are, by learning and elo- 
quence. The defendants are reputable citizens, in high social standing in 
the community. If you do find that the evidence^points to the guilt of the 
defendants upon this indictment, then, if you are not swift to find your 
verdict, you will at least be unhesitating in following the line of the evi- 
dence and the law. 

Now, gentlemen of the jury, these defendants are arraigned upon an 
indictment containing four counts. The first count charges them with a 



587 

general conspiracy, not a conspiracy directed against Charles Leach, or 
any other particular individual, but charges that they were engaged in a 
general conspiracy to deprive the colored citizens of York County of 
their right to vote. The second, the third, and the fourth counts charge 
them with a special conspiracy. The second count charges them with a 
conspiracy to injure Charles Leach, because he voted in 1870. The third 
count charges them with a conspiracy to prevent him from voting in 
1872 ; and the fourth count charges them with a similar conspiracy to 
injure and oppress him because he voted for a particular individual, A. 
S. Wallace, as member of Congress. 

You see, therefore, gentlemen, that the first count alone charges what 
I may call the general Ku Klux conspiracy ; while the second, third and 
fourth counts charge a special conspiracy to injure and oppress a single 
individual, named Charles Leach. 

It is my duty, gentlemen, to draw your attention to the connection of 
these defendants to the first count ; and what I propose to show to you, in 
the first i^lace, is that this was a conspiracy in York County, which 
called itself the Ku Klux Klan, the object of which was to deprive col- 
ored citizens of that County of their right to vote ; in the second place, 
that they carried out that conspiracy and did attempt, in all their opera- 
tions and by numerous raids, to carry out the purpose of that conspiracy ; 
and then, in the third place, that these two defendants were members of 
that conspiracy and responsible for its operations and its acts. 

Now, gentlemen of the jury, there is another principle of law W'hich 
you must carry in your minds through this discussion, and that is, that 
when a number of individuals have banded together for the accon)plish- 
ment of a common purpose, the law treats them as one man. If you 
twelve men, who sit before me, join together to accomplish an unlawful 
purpose, the law looks upon you as one man, and the meaning of the 
word conspiracy is " a breathing together." You speak one voice, you 
wield one arm, you are a single man while engaged in that conspiracy; 
and, therefore, what any one of you says or does, while in pursuance of 
that conspiracy, is the act and declaration of you all. It is not, there- 
fore, Mr. Foreman, necessary that we should prove that you did the act' 
which we charge upon the conspiracy ; it is not necessary for us to prove 
that you, Mr. Juryman, were the party who made the declaration ; but 
if the last man that sits upon the panel, while in puvsuance of that con- 
spiracy, has uttered a word or done an act connected with that conspi- 
racy, it is the act of every one of you twelve. If, gentlemen, we succeed 
in showing that Dr. Whitesides and Captain John W. Mitchell were 
members of that conspiracy, it is unnecessary for us to prove, under this 
first count, that they went upon a raid ; that they ever lifted a lash or 
struck a blow ; if they are members of that conspiracy, whatever raid 



588 

any member rode upon, there rode Dr. Whitesides and Captain Mitchell; 
and uj)ou every negro's back that they struck their blow, no matter what 
their names, if they were conspirators, and members of this Klan, those 
blows were struck by Dr. Whitesides and Captain Mitchell. 

Now, gentlemen, if we can show that such a conspiracy existed, and 
that these defendants proposed to deprive colored citizens of their right 
to vote, and that Dr. Whitesides and Captain Mitchell were members of 
that Klan, then they are guilty under this first count. 

Your Honors, speaking the voice of this Court, have already given us 
the law, wliich is the common' law of conspiracy, about which there can 
be no dispute ; and in order to ask your verdict, gentlemen, on this first 
count, it is not necessary to prove that Dr. Whitesides or Capt. Mitchell 
ever went on any raid, although we i^hall prove it. It is not necessary to 
show that they v/ere personally cognizant that Charles Leach was ever 
whipped, or that any colored man in York County was ever whipped. 
If they joined the conspiracy which had that for its object, they are re- 
sponsible for the acts which carried into effect the purposes of that con- 
spiracy. 

N"o, gentlemen, I am not pressing the law in order to envelop these 
defendants, but I am stating to you the law precisely as it has been 
already delivered to you by the Court, and as it will be delivered to you 
l)efore you are charged with this case. 

The Court, in the case of the United States vs. Robert Hayes Mitchell, 
instructed you that the act of one Avas the act of all. It is not necessary 
to show that Charles Leach, Charles Good and others were whipped 
because they were Radicals. The conspirators may have had private 
grudges, which they went there to gratify; they may have chosen to 
])unish these men because they were members of the militia company. 
It is not necessary to show that to prevent them from voting was the 
only effort of this conspiracy; if we show to you that it was one of their 
ohjecrs, it is enough. So that, gentlemen of the jury, I want you to un- 
derstand just how much is necessary to sustain this first count, and that 
it is simply this : That the Ku Klux organization was a conspiracy to 
deprive persons of color of their right to vote, and that this was under- 
stood to be its object, and that Dr. Whitesides and Capt. Mitchell were 
members of that order ; and while we shall show to you, gentlemen, that 
they were not only members of the order, but that they participated in 
its acts, and were present at its meetings, it is not necessary for us to do 
more than simply to show that they were members of this Klan. 

Now, gentlemen of the jury, what evidence have we of this con- 
spiracy ? We have, in the first place, the evidence of its written agree- 
ment. I know, gentlemen, that many of you are aware, from a former 
case that has been presented here, what I am about to say, but I beg 



589 

that you will listen to me, because you are charged with this case alone, 
and I must present it to you as if it were a totally new case. 

This paper, which I hold in my hand, purports to be the constitution 
and by-laws of the Ku Klux Klan, of York County, South Carolina. 
It is recognized, by its oath, by Mr. Davis, by Mr. Gunthorp, by Mr. Gunn 
and by Mr. Foster. Its oath is recognized by each of these four wit- 
nesses as the oath which was administered to them when they were ad- 
mitted to the order. Now, geutlemeu, what does the oath indicate as 
the purpose of this conspiracy ? Let us look into it and see whether it 
has a lawful purpose, or whether it intends to accomplish ils purposes by 
unlawful means. 

The oath binds each member of the order to this, that he shall be on 
the side of "justice, humanity and constitutional liberty, as betpieathed 
to us in its purity by our forefathers," or, as Mr. Davis tells you, in the 
oath he took, bound him to be on the side of justice, humanity, and to 
oppose the 13th, 14th and 15th Amendments of the Constitution c^f the 
United States. Let us see what this points to : "Constitutional liberty, 
as bequeathed to us by our forefathers." This sounds like an innocent 
phrase. It is the introductory sentence to the oath of this order. What 
does it mean ? It means precisely what Mr. Davis found it to mean. 
It means the Constitution before it was amended by the loth, 14th 
and 15th Amendments. " Constitutional liberty, as bequeathed to us, 
in its purity, by our forefathers," means slavery as it existed in the 
Constitution of the United States, and was protectd, and not only pro- 
tected by the munici^^al lavv^s of South Carolina, but protected and 
enforced by the National law and Government, in all its departments ; 
and, if some of you, gentlemen, had escaped in those days beyond the limits 
of South Carolina, even to the last foot of ground before you reached the 
dominions of the Queen of England, this national law, this constitutional 
liberty, as bequeathed to us in its purity by our foreflithers, would have 
seized you, and brought you back and planted you again upon the 
plantation, and within the reach of your former masters. Constitutional 
liberty, as bequeathed to us in its purity b}^ our forefathers, means oppo- 
sition to the thirteenth, fourteenth and fifteenth amendments. The 
thirteenth amendment abolished slavery ; the fourteenth amendment 
secured the equal rights of all citizens of the United'States against any 
discrimination or distinction on the part of the Governments of the 
States; and the fifteenth amendment, which crowned the edifice of civil 
rights, protects the citizen in the right to vote against any discrimina- 
ti'm on account of race, color, or previous condition. This organization, 
then, gentlemen, is dii'ected against the thirteenth, fourteenth and fif- 
teenth amendments to the Constitution. It is, therefore, directed against 
the freedom of the African race, against their general equality before 



590 

the laAV, and, finally, against their right to vote, in spite of any discrimi- 
nation on account of race, color or previous condition. 

What is the second paragraph of this oath ? " We oppose the princi- 
ples of the Radical party." Now, gentlemen, it comes to be narrowed, 
fi'ora general opposition to the new amendments to the Constitution, 
down to opposition to the Radical party. If it had said we are opposed 
to bad government, we are in favor of the Union of the States, we op- 
pose corruption and misrule, from whatever party it comes, its purposes 
might have been so broadly and generally stated that you could not see 
that it was a political conspiracy, and directed against a particular party 
in the community. But an honest guise is noAV worn, and after declar- 
ing itself on the side of Constitutional liberty, as bequeathed to us by 
our forefathers, it says : " We oppose and reject the principles of the 
Radical party." So, far, therefore, gentlemen of the jury, we have 
reached an organization which is to oppose a political party which ex- 
ists in this community. It is, therefore, an oath-bound organization, di- 
rected against a political party, and declaring its purpose to oppose the 
Radical party. 

" Any member divulging, or causing to be divulged, any secrets of the 
order, shall suffer death." Now, gentlemen, we begin to see that this is 
a serious business. It is not a political club to circulate information, to 
distribute documents, and exercise its influence freely and generally in 
the community, but they have secrets. They are going to perform deeds 
which must be concealed from the world; and not only must they be 
concealed by an ordinary oath, but it must be concealed and kept from 
the world by an oath, a part of whose obligation is, if any member dis- 
closes any secrets, he shall be put to death. Do you not know, gentle- 
men — does not the world know — that any organization formed in this 
country, whose secrets are so valuable to its members, so sacred and bind- 
ing, that he who discloses them shall be punished with death, is an ille- 
gal and unlawful organization? 

Something has been said to you, gentlemen, about the Union League. 
Did anybody ever pretend that that ever was an organization other than 
voluntary, and existing under the shadow of law ? Was it ever pre- 
tended that it was an organization which deliberately put down in its 
constitution that those who divulged its secrets shall be put to death? 
Does the League punish its members who leave its ranks and expose its 
secret-s ? Does it declare itself opposed to any political party ? It does 
not; for most of you, I doubt not, as well as myself, know that that ox*- 
ganization excludes no man on account of his politics or color, and de- 
mands no })o!itical faith for its membership, and harms no man if he 
joins it aud reveals its secrets to its deadliest enemy ; yet here is an or- 



591 

ganization which opposes the principles of the Radical party, and pun- 
ishes with death those who expose its secrets. 

This organization, gentlemen, requires, further, that every member 
shall provide himself with a pistol, with a Ku Klux gown and a signal 
instrument. What purposes, gentlemen of the jury, are to be executed 
with a pistol, a Ku Klux gown and a signal instrument? Are they lawful 
purposes requiring a pistol and a disguise for the body and the voice ? 
I insult your intelligence and your common sense, gentlemen, if I stop 
to argue to you any longer that au organization, which puts members to 
death for exposing its secrets, and requires its members to go upon their 
duties with a pistol and disguises for the body and the voice, is not an 
unlawful combination, and is a conspiracy, in the most thorough sense of 
that term. 

What next, gentlemen ? " No person of color shall be admitted to 
this order." Why not? Cannot persons of color be on the side of Con- 
stitutional liberty ; on the side of justice and humanity? May they not 
provide themselves with a pistol and a Ku Klux Klan gown and signal 
instrument ? May they not be ready to take an oath to put to death any 
fellow-member for divulging their secrets ? Certainly they may ; and 
yet no person of color shall be a member of this organization. What, 
then, have we ? We have an organization, bound together to defeat the 
three amendments to the Constitution of the United States, which de- 
clare freedom to the colored race, and protects them in their rights, dis- 
guised and sworn to put to death ^ny of its members who divulges the 
secrets of the Ojder ; and directed against the colored race, whatever 
may be their political principles, or other sympathies, excluding them, 
on account of their color, from the ranks of its membership. And all 
this, gentlemen, drawn out in detail. The election of its officers, its 
meetings ordered, its trials of offending members, the sentence of death 
for disclosing its secrets, and the provision for an appeal before the sen- 
tence of death is executed, to some power which is described as the 
Grand Cyclops, at Nashville, Tennessee, all this, gentlemen of the jury, 
written and set down, with pen upon paper, and brought here before 
you and recognized by every* member of the order placed upon the 
stand. 

Now, gentlemen of the jury, we come to\he conclusion, to which 
every mind must come, that we have here upon this paper, not only con- 
spiracy, but conspiracy that appalls every citizen of the country. Be- 
fore we go 'beyond this point, before we see the actual practice, we are 
startled with the teiTible character of an organization which deliberately 
provides for the death of any man who shall disclose its secrets. 

Then, gentlemen, what evidence have we that interprets this written 
agreement ? You remember the evidence of Mr. Davis, that he was a 



592 

member of the order, had attended its meetings, and had met to go 
upon its raids. Pie tells you that its purpose was precisely what this 
paper indicates to you, and that was, to put down Radicalism, by whip- 
ping all the colored members of the Radical party ; and that this was 
its general and all pervading purpose ; and while, on special occasions, 
they might add to it the purpose to punish some person, who was other- 
wise obnoxious, yet the general, and all-pervading purpose of the or- 
ganization, was the putting down of Radicalism and negro suffrage. 
Mr. Davis is, perhaps, upon the whole, the best informed member of the 
order which we have placed before you. He tells you distinctly, that 
his understanding, when he joined the order — and he was Clerk of the 
Klan, and recognized its constitution and by-laws — was the whipping of 
colored men, to injure and oppress them till they should be afraid to vote ' 
the Radical ticket. 

Mr. Gunthorpe tells us that as early as 1868, three years ago and 
more, he joined an order in that Cc)unty, and after he had entered it, he 
found that it was a political organization aimed against the negro Radi- 
cals, and he left it. 

Mr. Foster, who went further than any of these witnesses, and joined in 
these raids that have been described to you, tells you, in terms that have 
never been contradicted, that he never otherwise understood that order 
than that its purpose was primarily and always and everywhere to inter- 
fere with the right of the colored men of York County to vote and to ex- 
ercise their free choice in their elections. They undertook, also, to sub- 
due the few scattering white Radicals there ; but their aim was so to ter- 
rorize that community that no colored man who had been set free by the 
Thirteenth Amendment, and made a citizen and a voter by the Four- 
teenth and Fifteenth Amendments, should be any better, or, gentlemen, 
as well off, as when he was a slave ; for if Charles Good and Tom Round- 
tree had been the property of any man in York County, would he have 
suflered their throats to be cut? If you have not rights, you had better 
be property, for then man's cupidity at least will protect you in your lile. 
Mr. Foster tells you that always and everywhere its purpose was to whip 
those negroes who had influence, and who had voted the Radical 
ticket. 

!N^ow, gentlemen, what o^her kind of evidence have we? We have the 
written agreement, and the testimony of these four witnesses as to how it 
was to be carried out. What next, gentlemen? Mr. Davis tells you that 
Charles Good was whipped by this order, and why ? Wesley Smith told 
him that he was whi})])ed because he was a Radical, and had influence 
among the negroes. And what became of Charles Good afterwards ? 
He was so imprudent as to say he thought he knew some of the men who 
whipped him, and what happens? Carrying out its opposition to Radical- 



593 

ism, they have whipped hira, and the poor man tells somebody that he 
thinks he knows some of the men who did it, and this conspiracy takes 
him upon the highway and ties him to a tree ; half kills him by shooting 
him, and finishes him by smashing his head with a rock. Members of 
the order go to Mr. Davis, a brother member, and tell him that they have 
done it ; and one of them says : " I shot him," and another says : " I fin- 
ished him before I left." Gentlemen of the jury, only three or four men 
may have killed Charles Good; some of those who have not been en- 
gaged in this murder, may shrink back and be startled into confession by 
the enormity of this crime, and therefore the order goes forth that every 
member of the order shall assemble, in the field, where the body of this 
negrq lies, and carry him aad conceal him in Broad River. Then every 
man is connected with the murder, and if he gives evidence he gives it 
against himself. They meet, gentlemen of the jury, this Ku Klux Klan, 
they sink the body in Broad Kiver, and one of them, apparently with 
less remorse or more daring than the rest, jumps upon the body, and 
drives through it the stakes that are to hold it to the bottom of that 
stream. 

That is the Ku Klux Klan, gentlemen, not upon paper, not by the 
voice of the witnesses, telling you about its order, but it is the Klan 
speaking through the pistol, under its disguises, and carrying out the full 
purposes for which it was formed. 

Bat this is not all. Do you remember the witness, Mr. Bowens, who 
was one of the party that raided upon Tom Roundtree, and shot him as 
he v.'as attempting to escape, and then w^ent to him with a bowie knife, 
while he was yet breathing, and cut his throat from ear to ear? And 
what is the matter with Tom Roundtree? AVas he a militia man ? Had 
he fired any body's house ? Had he threatened to kill from the cradle to 
the ga.ave ? That " cradle to the grave," gentlemen, is a white man's 
story. We have, heard enough of it. You know, gentlemen, it is not the 
vernacular of the negro ; it is the white man's tale, told after the deed ; 
but even this is not brought against Tom Roundtree ; he is a man of sub- 
stance, a reputable citizen of that community, and the only known offense 
which he has committed, is that against which this conspiracy is aimed — 
that he was an influential member of the Radical party. 

Gentlemen, shall I go over those other instances of violence and 
atrocity? No, I cannot ; it is enough that it has been repeated in this 
Court — and that it will go forth to the world in the public prints. Let 
us not, if we ean avoid it, stain our lips, or fill our minds again with 
those horrible details. But wherever we find the Ku Klux Klan striking, 
they are striking against Radicalism — against negro Radicalism ; and my 
elo'juent friend asked yesterday, if, when they are ravishing women, and 
whipning women if they are still pursuing Radicalism ? I answer, yes 
38 



594 

yes. When they whipped Mary Robertson it was to make her tell 
where her husband was ; when they ravished Jaue Simril, it was to 
punish her as well as to gratify their lusts, and to punish her because 
she would not tell where her Radical husband was. Not an act, gentle- 
men, but what points to this general purpose, wherever you see the Klan. 
Its general and constant purpose was the terrorizing of colored people 
by injuring them ; by injuring their famdies until they shall have paid 
the penalty for their Radicali.'>iu, and be deterred from voting at future 
elections. 

Now, gentlemen, how much is established? That the Ku Klux Klan 
existed in York County ; that it was an unlawful conspiracy to prevent 
colored men from voting. And now the serious question remains for 
these defendants — are they connected with that conspiracy? Remember, 
gentlemen, it is not necessary to prove that they killed Tom Roundtree ; 
that they ravished Jane Simril, whipped Charles Leach, or killed Charles 
Good. Are they members of the Klan that had this for their purpose? 
If they are, they are responsible for all its acts. 

Now, gentlemen of the jurj^ is John W. Mitchell a member of the 
Ku Klux Klan ? It is admitted that he is. His counsel yesterday told 
you that, with the evidence that had been presented, he could not argue 
that John W. Mitchell was not a member of the Klan, in York Connty. 
Charles W. Foster knows him to be a member of the Klan ; was present 
when he was elected Chief of the Klan, in the old field near Mrs. 
Wright's house, tie recognized him on the Pressley Holmes raid, the 
same raid with which we shall soon connect hini in whipping Charles 
Leach. But I need not refer to this testimony, because it is now admitted 
that John W. Mitchell was a member of the Ku Klux Klan ; I have 
nothing under the first count, therefore, to do with J. W. Mitchell, except 
to take the admission of his counsel, and the proof goes to show to you, 
that the nature and purpose of the conspiracy was such as I have de- 
scribed to you, and that J. W. Mitchell, as a member, is guilty upon the 
first count of the indictment. 

Is Dr. Whitesides a member of the Ku Klux Klan? We have no 
witness who saw him sworn in ; we have no witness to whom he confessed, 
in so many words, that he was a member of the Klan, but let us see if he 
acted with the Klan as an active member, and engaged in at least three 
of its raids. We come to the testimony of Charles W. Foster, and he 
tells you that on the raid that whipped Charles Leach and others, he 
went with Dr. Whitesides to the house of Milton Watson*. He details to 
you the circumstances. 

Now, gentlemen, it is always very dangerous for a witness who is 
telling a false story to dwell on details. If the witness had said gener- 
ally that Dr. Whitesides was a member of the order, he could not well be 



595 

contradicted ; but if he tells you where he met him, who was with him, 
what he said, he can easily be contradicted. Foster tells you that he 
was at the house of Milton Watson ; that there, with the women of 
that family, the}^ engaged in making their dit^gusses for the Charles 
Leach raid ; that while they were engaged. Dr. Whitesides having no 
saddle, he, Foster, was sent to a neighbor, whose name he gave, to get 
a saddle for him to raid with. Now, gentlemen, we have Milton Wat- 
son connected with that affair, and we have that neighbor who loaned 
the saddle. If I had been defending Dr. Whitesides, I think I would 
have brought Milton Watson here. I think I would have gone to that 
neighbor — and asked this Court to wait, and this Court would have 
waited — to say whether he loaned a saddle on a certain night to Charles 
Foster. I think I would have gone into these details, and, if my client 
could have shown that Milton Watson was somewhere else, and that 
neighbor did not loan that saddle, I think I should have done a good 
deal towards impeaching the testimony of Foster; but nothing of that 
sort is done. Watson is beyond the reach of any of us ; gone, we 
know not where, a terrified and self-convicted Ku KIux; and, if he 
comes here to defend Dr. Whitesides, he comes to meet his own in- 
dictment and conviction. Mr. Foster goes on to tell us, with the details, 
how, he met him with the saddle, where he met him, and of Dr. White- 
sides taking the saddle and riding upon it, and details the conversa- 
tion about the whisky, and where they went and whom they met. 

Now, gentlemen, let us look at Charles Foster, as he couies here as' 
a witness. Both of the counsel, yesterday, dwelt upon the fact that 
Foster was a confessed Ku Klux. So he is. They mention it to throw 
a suspicion upon his testimony. But, how did Foster come into this 
Conrt to testify ? Why did he originally come to make known the acts 
and purposes of this order? If my friends can show that he was in- 
duced, by any offer that he should not be prosecuted — that any induce- 
ment was held out to him to testify — then they will have done some- 
thing to destroy his testimony. Have you heard a word of anything of 
the kind, gentlemen of the jury ? He was like everybody else in York 
County who had belonged to tliat order. He knew it was written down 
iuthe purpose of that order that, if he disclosed any of its secrets, two 
thousand men in York County were sworn to kill him. There were no 
promises of exemption from punishment otf.'red him, and yet he comes 
to Col. Merrill and tells the whole truth, and comes knowing that the 
testimony he shall give will convict him of felony, whose punishment is 
the penitentiary ; and he came with the pistols — two thousand loaded 
pistols — pointed at him, and every man sworn to kill him ; and yet, he 
comes and tells his story ; he goes to jail ; he cornes out of it ; he meets 
Dr. Whitesides ; he meets members of the Klau everywhere ; he is 



596 

badgered in jail ; he is coaxed and entreated everywhere ; and ptill he 
says, firmly, " When I go upon the stand I shall tell the whole truth.'' 
"Why, Mr. Foster, one word from you will set Dr. Whitesides free?" 
"Have you any animosity against Dr. Whitesides?" "None in the 
world." " Why, then, will you not say the word that shall set him free?" 
"Because, gentlemen of the jury, it is not true; he was there, and 
when I came to tell the Government about this conspiracy, I determined 
to tell the truth. It has been told ; and, while I wish that Dr. White- 
sides could have been left out upon that raid, I am on my oath, and, against 
entreaty and against threats, I tell you, gentlemen of the jury, that Dr. 
Thos. B. Whitesides was there." I tell you, gentlemen of the jury, that 
such evidence is the f^trongest which can possibly be adduced. It is the 
confession of a self-convicted, self-accusing fellow-conspirator; done with- 
out malice — done without any desire to injure others, but simply under 
the solemn conviction that this whole matter shall be fully stated, under 
the sanction of his oath, in this Court. 

Charles W, Foster's testimony coines here under sanctions, such as 
attach to no other witness, because he cotnes here to brand himself as a 
felon — as a man who once was capable, in some way or other, of joining a 
conspiracy which he knew had these horrid purposes in its mind. 

Mr. Foster, as I have told you, connects Dr. Whitesides distinctly with 
one entire raid, upon which no less than seven negroes were whipped — 
every one whipped because he was a Radical, or because he was a mem- 
ber of the Union League. 

Gentlemen, let me say to you, I am not forgetting the defense in this 
case; I am now simply going over the evidence which the Goveriimeiit 
has presented. What else have we, gentlemen, dian the testimony of Fos- 
ter, connecting Dr. Whitesides with what is known as the Charles Leach 
raid, which commenced with Pressley Thompson and extended to Charles 
Leach, to Charles Good, to Amos Howell, Jerry Thompson and two 
others, on the plantation known as the "Beauty Spot." We have the tes- 
timony of James Crosby, a colored man, who was whipped because he 
was a Radical, who lived on Mr. Wm. Wilson's plantation. There had 
been four rairLs upon the Wilson plantation ; it was upon the first that 
James Crosby was whipped ; it was upon the second that Mr. Wilson was 
taken out of his house and threatened and injured ; it was upon the third 
raid that Mary Robertson was whipped ; it was upon the fourth that j\[r. 
Wilson's house was surrounded and James Crosby was taken out and 
tlircatcned with hanging, but finally let off. It was upon the first raid 
upon the Wilson place that thoy whipped James Crosby. He was here, 
and detailed all the circumstances of his whipping; and when the ques- 
tion was put to him : " Did yo\i know any of the party ?" he named tp 
you four of the men who were engaged in this whipping. They were 



597 

Captain John W. Mitchell, Dr. Thomas B. Whitcsides, George Leach 
and Ed. Leach. He says he knew theui by their size and by their gene- 
ral appeai-anee, by all the evidences that could ceme from a familiar 
acquaintance with men whoui he had known for years. James Crosby 
is a preacher. He comes here without anything to impeach his testi- 
mony ; without any-sort of evidence that he has any animosity against 
Dr. Whitesides. But he tells you positively that he knew .Di"? White- 
sides and Capt. Mitchell, and two others. The witness had no hesitancy 
in saying it was Dr. Whitesides and Capt. Mitchell. 

You remember, gentlemen, that in the third raid upon that plantation 
they whipped a colored woman whose husband is' John Robertson. She 
tells us they came inside of her cabin; that there was a bright light there, 
and that while they staid there that she recognized their faces by the 
light of that fire, which were not covered. She recognized Dr. White- 
sides and Capt. Mitchell. Here are Ku Klux raiding in the accomplish- 
ment of their purposes, and they raise the cover from their faces, and 
they are the faces of these two defendants. Has this woman any motive 
in coming upon the stand, ajid, under her oath, telling you that it was 
Dr. Whitesides and Capt. Mitchell? She can have none, but the desire 
to tell the truth. Remember, gentlemen, at this time the Ku Khix held 
full sway in York County ; that their purposes was accomplished boldly ; 
that the press was silent, and the voice of the grand jury and every 
public utterance of tluit kind was ^ that the County was peaceful and 
quiet; no outrages ; no disturbances ; so completely had the Klan gained 
possession of that County. And on that niglit Dr. Whitesides and the 
Chief of a K[an did not think it uece.^sary to keep the disguises over 
their faces. 

This, gentlemen, is the evidence that connects both of these men with 
the Klan., I do not care whether Dr. Whitesides took the oath or not. 
I don't care whether he knew the signs or not. Three witnesses tell you 
that he was on the raids of the Klan ; that he participated in its acts ; 
and that is more conclusive of his responsibility for this conspiracy than 
if he had sworn the oath and joined the organization and remained at 
home. These two defendants, gentlemen, were members of the order — 
one the acknowledged chief of a Klan, and the other found, on three 
separate occasions, acting with the order, going upon its raids and exe- 
cuting its purposes. 

Now, gentlemen, up to this point we have said nothing about the 
Charles Leach raid. We have simply couhued ourselves to this general 
conspiracy, to inquire what it was, and whether Dr. Whitesides and 
Captain Mitchell were members of it. We have found that conspiracy 
was to prevent colored men from voting ; and we have found that these 
■ two defendants were connected with that conspiracy, and that they are, 



598 

therefore, responsible for all the acts of the conspiracy clone from the 
time when the}' first made their connection with it. 

I come, now, gentlemen, to the second, third and fourth counts of this 
indictment, which all charge an ijffeuse committed against Charles Leach. 
The first count charges that they had injured him because he had voted ; 
the second, that they injured him to prevent him I'rom voting ;' and the 
third, that they injured him because he had voted, for Mr. Wallace as 
a member of Congress ; but they are all confined to one individual, 
Charles Leach. 

Now, we are to see what is the evidence that connects both these de- ■ 
fendants with this particular act of whipping Charles Leach. All that 
I have said about the testimony of Charles Foster, in the former part of 
my argument, applies here. Mr. Foster, Mr. Watson and Dr. White- 
sides go on this raid ; they meet CajDtain Mitchell with the members of 
his Klan, and they go to Presley Thompson's, or Presley Holmes', as he 
is sometimes called, and they whip him because he is a Radical ; then 
they go to Jerry Thompson's, and they whip him, and others, because 
they are Radicals ; and then they go to Charles Good's upon the same 
errand ; and then they go to Charles Leach's, and then to Amos How- 
ell's, on the Howell plantation. I want you to remember Amos Howell, 
who is whipped upon the same night as Charles Leach, Presley Good, 
Presley Th(mips()n and others. Tiiis is the true testimony which con- 
nects Dr. Whitesides, with Captain Mitchell, upon this particular raid; 
Charles Leach did not know them ; he never pretended to knov*' them, 
for they were in disguise. 

We come now to the defense upon the case. There is no defense 
upon the first count, but upon the second, the raid upon Charles 
Leach, they attemjjt to prove, that upon the night on which Charles 
Leach was whipped, Dr. Whitesides and Captain Mitchell were both at 
Mitchell's house, and remained there all night. Let us see whether this 
is true or not. In the first place, gentlemen, the date is the important 
feature in this portion of the testimony. Both of the" counsel who ad- 
dressed you yesterday told you that the Government had fixed the date 
on which Leach was whipped as the 9th of January. Now, gentlemen, 
if that be true, there is evidence that Dr. Whitesides and Captain 
Mitchell were somewhere else on that night ; but yt-u will remember 
that buth the counsel insisted that vvc had fixed that date. But, subse- 
quently, Amos Howell told you that he was whipped on that night, 
and that he saw Charles Leach next morning, and the other victims of 
this raid ; and that it was about the twenty-fil'th, twenty-sixth or twen- 
ty-seventh of Jaiuiary ; yet they tell you that we are bound, by the tes- 
timony of Foster, of Leach himself, to the 9th of January. If they 
can prove, therelbre, that these defendants were somewhere else on the 



599 

night of the ninth of January, they cannot be convicted of the raid upon 
Charles Leach. The testimony of all these Avitnesses is now before me, 
and I find that neither Charles Leach nor Charles Foster fixed the date 
upon the ninth of January with any certainty ; that Charles Foster dis- 
tinctly testified, upon his cross-examination, that he knew nothing about 
the date, except what he had been told since he came here. Had we 
known as much as we now know', we could have shown that this infor- 
mation came from the defendants. I don't want you to be doubtful 
about the testimony of Charles Leach, because it this raid is not located 
on the night- of the ninth of January, the alibi of these defendants is 
gone. (^Mr. Corbin here read, from the stenograj^her's notes, the testi- 
mony of Charles Leach.) I will read the testimony of Charles Leach. 
The testimony of Charles Leach, therefore, is simply that it was ou a 
Monday night after Christmas, and he thinks after New Year ; but he 
does not fix it upon the night of the ninth of January, and he dis- 
tinctly refuses to say that it was the Monday night after Christmas, 
meaning the Monday night after Christmas week, which the counsel was 
anxious he should fix upon as the night when he was whipped. Ee- 
member, gentlemen, the claim is that we had selected the ninth of Janu- 
ary, and fixed the date, and that we cannot say now, in view of this 
defense, that it was upou some other night. Charles Leach does not 
testify that it was upon the night of the ninth of January or any other, 
particular night in January ; but simply, that it was after Christmas, 
and he thinks after New Year; and in ans^ver to the questions which 
was to fix it as ou the night of the ninth, he distinctly says that he 
cannot say. 

Then it is claimed that Charles Foster has fixed the night as the ninth 
of January. Here is his testimony upon the direct examination. [Mr. 
C. here tead from the testimony of Charles Foster.] The defense in- 
tended to prove that on the night of the 9th of January, Dr. Whitesides 
and Captain Mitchell were at home; and, therefore, when you come to 
the cross-examination of Foster, you are not surprised to find that they 
seek to draw from Foster, with certainty, that it was on the night of the 
9th of January, because they were going to prove that on that night 
Whitesides and Mitchell were at home, and there the cross-examination 
of Foster, with reference to this matter, naturally stopped : " I know 
nothing about the time, except what I have been told since I have been 
here." Were I to tell you, gentlemen of the jury, what Charles Foster 
was told and who told him, it would not be evidence, and I cannot, there- 
fore, inform you. But this, gentlemen of the' jury, is the entire evidence 
of Charles Leach and Foster as to the time when this raid upon Charles 
Leach occurred. It was essential to this defense, gentlemen, that- this 



600 

raid should be on tlie night of the 9th of January, because they have an 
alibi already proved for that night. 

Now, gentlemen, an alibi is a swift and complete defense, but tlie de- 
fense have made twO' or three fatal mistakes in getting up theirs, and it is, 
therefore, utterly valueless. In the first place, they had to claim that 
we had fixed the night of the 9th of Jannary ; but we had done no iueh 
thing. Charles Leach does not know what night it was, excej^t that it 
was after the New Year, he thinks, and Foster knows nothing about it, 
except what he has been told since l;ie came here. Now, we have another 
witness, Amos Howell, and he says he was whipped on the night of the 
25th, 26th or 27th of January, about a week before the raid upon Mr. 
Wm. Wilson; and then comes Mrs. Wilson, who testifies that her child 
was born on the 3d of February, which fixes the time of Amos Howell's 
whipping, and Amos Howell knows that this was the same night on which 
Leach was whipped. 

Now, gentlemen, what is the evidence for the defense that Dr. White- 
sides was not present at this raid ? Nothing but the general denial, that 
on the night of the 9th of January, he was sitting up with Capt. Mitchell's 
mother, who was sick ; but what matters it, gentlemen, where these de- 
fendants were on the 9th of January ? You have been told that the 
time laid in the indictment is of no consequence^ and it is not. We give 
no positive evidence, except the testimony of Amos Howell, who knew 
that he was whipped some night with Charles Leach, and that was late 
in January. 

Now, what was the testimony for the defense? First, W. C. White- 
sides, a brother of this defendant, testifies that Dr. Whitesides was at 
Dr. Darwin's on that night," and that they passed by his house on their 
way to Cciptain Mitchell's. The next testimony was that of Dr. Dar- 
Avin, and he, gentlemen, is connected with this organization, and you 
are to bear that fact in mind in judging of the value of his testi- 
mony. Dr. Darwin, at first, denied that he was a member of this Ku 
Klux organization ; u])on his cross-examination, he admitted that he 
was present at a meeting of the Klan when Mr. Albertus Hope was 
elected Chief Next, we have the testimony of Mrs. Howe and Miss 
Howe, the mother and sister of Julius Howe, whom we have proved, 
over and over again, to be a member of tliis order. I do not say to 
you, gentlemen, that they are not stating the truth, but these witnesses 
(Vjine upon the stand with the benefit or burden of their surroundings, 
and their motives and their relations. The next witness is Mrs. Whis- 
onant, a sister of Captain Mitchell. These are the witnesses brought 
upon the stand to testify that, on the night of the 9th of January, 
ihesQ" defendants were at home all night with the sick mother of Cap- 
tain Mitchell ; but, gentlemen, it is not enough to prove this ; they 



601 

must go further and show that that was tlie uight on which Charles 
Leach was whipped. 

Now, how Jiave they proved that ? Captain Mitchell's little son is 
brought here to prove that the next morning he went to the post 
office and there heard that Charles Leach had ^een whipped the night 
liefore. Did he see Charles Leach? He did not. Amos Howell saw 
hiiu. Little Samuel Mitchell did not i)retend that he saw anybody that 
had been whipped that night; and you must remember that he is the 
sou of this defendant, and comes here to testify for his father. All the 
rest of their witnesses simply testify that they heard it from tltis little 
boy, and he heard it at the post office as a mere rumor. Dr. Darwin 
testified that on his way home, next day, he heard the rumor at Wiley's 
store; but did he see anybody that had been whipped, or. did he see any- 
body that had seen the victim ? He did not. And yet, gentlemen, that 
is the entire defense. 

On the part of the Government, we present the testimony of one of 
the victim:^, and he saw the other victims the next morning, and the 
testimony is, that it was late in January that the whipping was done. 

An alibi, gentlemen, is a good defense when it is made out ; but when 
it f lils, everyfhing is gone ! The defeufhints stand here to defend against 
the whipping of Charles Leach ; and the defense is that on the ]ii;.;ht of 
the 9th January they were at home ; whereas the full and positi^'e evi- 
dence is that it was on the 25th, 26th or 27th January that Charles 
Leach was whipped. 

Now, gentlemen, the case is before you, and you are now in a condition, 
so far as my efforts are concerned, to understand this testimony, and to 
see how completely and beyond controversy these parties are connected 
with the general conspiracy which is charged in the first count of the iu- 
dietment, and how, by the positive and circumstantial testimony of Charles 
Foster, a witless entitled to the utmost credit. Dr. Whitesides was a 
member of that party who raided upon Presley Holmes, Chas. Good and 
Charles Leach, on the night of the 25th, 26th, or 27th January; while 
everything that can be brought here to turn your minds away from the 
necessity of a conviction for whipping Chas. Leach is that these defend- 
ants were, on the night of the 9th January, at the house of Mrs. 
Mitchell. 

I called your attention, gentlemen, to the ease with which this story of 
Charles Foster could be disproved. It is circumstantial — it gives details 
— and if it could be contradicted, the witnesses to do so could and would 
have beeu brought here. I have not the heart, gentlemen, to dwell upon 
the attempt on the part of the defense to involve Charles Foster in some- 
contradictions with reference to his identification of Dr. Whitesides as a 
member of a party that raided upon Charles Leach. We have the testi- 



602 

mony of Robert Riggans and John S. Miller that when Foster left the 
jail he tolfl Dr. Whitesides, in response to his inquiry, that he was going 
lO Colonel Merrill to correct the mistake he had made. Bat I must call 
your attention, gentlemen, to these witnesses — Robert Riggans and John 
S. Miller. Who are they ? If anybody was ever stamped upon his face, 
before his lips broke into speech, as a natural born Ku Klux, it was 
Robert Riggans ; he is a Ku Klux, and was elected Chief of the Klan at 
Sharon Church. John S. Miller says he is not a Ku Klux, and yet con- 
fesses that he attended the Sharon Cluirch meeting; and Elias Ramsey 
testifies that he was at the Sharon Church meeting, and saw John S. 
Miller. These are the witnesses who come here to prove to you that 
Charles F<^ster said that he would correct his mistake about Dr. White- 
sides. We could not, gentlemen of the jury, exclude them froni the wit- 
ness stand, but you, gentlemen, can exclude them, and you are bound to 
exclude every man's testimony who is proven a member of this conspiracy ; 
and I go further, and I say that you are bound to disregard any witness 
who C'»ines upon this stand, who is known to have a connection with tbis 
order, which would tend to induce him to give evidence in favor of those 
who are charged with this conspiracy. 

Now, gentlemen of the jury, Dr. Whitesides and Captain Mitchell, it 
is said, were good men. I hope they Avere. Whatever there may have 
been of good in the past of these men's lives, let them cling to it, let them 
hold fast to it, for their character, from this hour, is gone. Men of intel- 
ligence and education, they have associated themselves with a stupendous 
conspiracy that has now come to light, and that only a\Vaits your verdict 
to meet its doom. You stand face to face, gentlemen, with two men who 
are members of that conspiracy, and who have as little claim to your 
sympathy, under any circumstances, as any two men who could be singled 
out from this vast organization in the whole country ; and on this occa- 
sion, and in arriving at your verdict, you can certainly not be persuaded 
to anything less than a verdict of guilty upon all these counts against 
these two defendants. 

A jury is always the last and highest protection of a community. 
You are bound to remember, gentlemen, that you are the final defense of 
the liberties of every man; and you are not to raise any (question al)(Uit 
the i)r(>priety of })uni6hing these two men because you have hearts of 
pity and of sym{)athy for individuals ; but you are bound to raise your- 
selves to the height of your responsibilities, and to remember that you sit 
here to protect the rights of the entire community, and that your verdict 
is to be made up under the solemn responsibility, from which you cannot 
escape, to save the rights of the entire colored race, and to vindicate the 
claim of our country that we are enlightened and civilized, and that we 
live under a Government which protects alike the great and the feeble; 



603 

which bestows rights and defends them ; which clothes a whole people, 
once slaves, with complete freedom ; and never pauses until that freedom 
has been made secure against every attack and every conspiracy. 

The jury returned into Court announcing that they could not agree 
on a question of fact, on which they were again directed to retire. At 9 
o'clock on the following morning, (Saturday,) the Foreman returned the 
following ■verdict : 

On the fii'st and third counts of the indictment — Guilty. 

On the second and fourth counts — Not Guilty. 

On motion of Mr. Corbiu,the prisoners were remanded into the custody 
of the Marshal to await the further order of the Court. 

Mr. C. D. Melton, of counsel for the accused, moved f )r a new trial in 
arrest of judgment. 

SENTENCE OP JOHN W. MITCHELL. 

John W. Mitchell was next called, the motion for a new trial and in 
arrest'of judgment having been witiidrawn. 

Q. (by Judge Bond.) What have you to say in mitigation of your 
punishment? 

A. Well, I don't know hardly what to say ; if I was educated, so as 
to explain myself, I would be glad to do so, but as I have but a poor 
education, I don't know how to express my desires; 1 don't deny I be- 
longed to the organization, and never have since I attached myself with 
it ; when I was threatened beforeliand, I thought that, for to save myself, 
I better get into it, and on the 28th or 29th of December last I joined 
the organization, betwixt Christmas and New Year's. The day that I 
joined they appointed me Chief; they said they wanted a man that was 
sober and discreet, so as to not allow anything to be done out of the way, 
and I accepted the office as Chief in my neighborhood ; I never have 
issued an order to them at no time ; was with the Klan on.two raids that 
was started to be made, but prevented them from going; didn't let them 
go ; the raid I am accused of being on, down at my house, I wasn't there; 
I thin'K I showed to the Court, satisfactorily, that I was not tliere. The 
evidence I produced in Court, and it is not worth while • foi' me to 
state anything about that matter, because I know nothing about it. I 
remained in the order till the 2oth of February, and I left it, and hadn't 
anything to do with it after the 2oth of February. I had a disguise, and 
on Monday morning, the 25th, I burned it up; I told my wife ; she had 
advised me to quit it; I told her I would take her advice, and leave it 
and have nothing more to do with it. I would be glad for the Court to 
be as lenient as possible, as I have a wife and seven children — my largest 



G04 

you saw here on the stand. I have a son that is married ■ that I do not 
consider as ni}' family at all at present, and 1 have an afflicted mother, 
and me and my sou is the only support that she" has. My next two 
largest children are daughters. The raid that they were going to make 
on Wm. Kell, I heard of; I didn't order the Khm oat; I heard, that 
they W'ere going to make a raitl — -I think that was Monday night ; I heard 
it Monday about 12 o'clock — and I went to the meeting place and begged 
them to not go; that it was not right to do so ; and if Mr. Kell had been 
able to give in his evidence here, he would ha^e sh(jwed the Court that 
there wasn't any hard words or hard feelings betwixt him and me that 
night; that is Mr. Hugh KjII. It was spoken of by some of the party, 
I ch)n't remember who, that tliey thought it would be well for Mr. Foster 
and Mr. Hugh Kell and Mr. Wm. Kill, all Lo -be killed, and I opposed 
it ; I UAd them it wouldn't do to take the life of any one; I opposed any such 
means whatever, and Mr. Foster told me himself that he would have been 
g]a,d to have gone on and got sight of Mr. Kell; if he had, he would have 
killed hiiu ; I t(jld him that was wrong, he oughtn't to do that. And then, on 
the York raid — I heard iiiiiU when I was abouc nine miles from home, 
going to church — I turned around and goes back h >me, thinking that 
the man who had been put in charge, instead of me, would order out the 
Klan, and I went back home to propose, if it was ordered out, t) go and 
stop that, raid. 

Mi\ Mellon. Who was that man ? 

A. Chesterfield McKinney. When I got to where they met, they was 
just coming out onto the big road. As I rode up, I went on talking to 
one and another until we got down to the mill, and I persuaded them to 
make a halt — which they did — and I talked to them and tried to con- 
vince them that they was wrong ; and after awhile, there was two other 
small Klans came up, and asked what we was doing there. I just re- 
plied tliat 1 did not think that anybody had any business in Yorkville 
that night ; and I told them, as for myself, I am going back home-;— the 
rest of you caij do as you please. I have been talking to you, and if 
you arc not willing to take my advice, go ycuir length. I got on my 
horse and turned round — and I was branded with cowardice. I heard 
the next day, from a young uum of the party, that they had threatened 
me for not going on to Yorkville, and I got him, myself and my son, and 
was prepared for a week or ten days afterwards for to meet them — pro- 
vided they came on me. 

Mr. Mellon. Who was the young man who gave you that intelli- 
gence ? 

A. Mr. John Wallace. 

Mr. Corbin. Will the Court allow me to ask one question ? 

Q. (by Mr. Corbin). Didn't you advise your Klan not to go on that 



605 

raid, because you didn't receive expected orders from Mr. Averj^, the 
chief of the County ? 

A. No, sir ; I didn't. 

Q. Wasn't that statement made at Herndon Mill ? 

A, Yes, sir ; that statement was made there. 

Q,. That statement was made, that the Klan had not received orders 
as expected, and hence they ought to go home? 

A. I told them that I would like for them to show the order; there 
was no oixler produced, and I turned round and went back home. 

Q. What was the understanding that night ? 

A. There was no understanding at all — only that they were to make a 
raid on Yorkville. 

Judge Bond. It appears to the Court, from the testimony that has 
been taken in this case, that you were a very prominent man in that 
neighborhood, and all these young men and ignorant people had a right 
to look up to you for direction ; and then you were a chief of a Klan, 
and from you all the orders came; you were a man of property and po- 
sition ; you had an opportunity to know the transactions that were going 
one because you were a chief; you had better means of information than 
those men had, who were always accustomed to follow the prominent 
peojile in their particular section of country. Knowing all this, hearing 
of the ravishing, murders and whipping going on in York County, you 
never took any pains to inform anybody; you^ never went to the civil 
authorities, and you remaitied a chief till they elected somebody else. 

The Prisoner. I was afraid to do that, for fear of my own life. 

Judge Bond, (continuing.) You were afraid of your own life from the 
very institution you set on foot. You have appealed for mercy on ac- 
count of your family, and it is proper that you should appeal to the 
Court on that ground. But you never thought of the families of the.>3 
other people. Men were taken out and murdered within sight of their 
wives, and men were scourged, and their wives scourged, by this infamous 
organization, of which you were a chief The judgment of the Court, 
in your case, is, that you be fined one thousand dollars, and that you be 
imprisoned for five years. 

SENTENCE OF THOMAS B. WHITESIDESI. 

Thomas B. Whitesidos was next called up, the motion for a new 
trial and in arrest of judgment having, as in the preceding case, been 
withdrawn. 

Q. (by Judge Bond.) What have you to say to the Court? 

A. I have not got anything. What I could say has been proven to 



606 

you ; I cannot say anything more ; I C9,n say that I did not belong to the 
order, and never did, and was always opposed to it. 

Mr. Wilson, sotto voce. State about that Charles Leach raid. 

The prisoner. I wasn't on it. I was at John W. Mitchell's the night 
this raid was charged against me. 

Judge Bond. That has been found otherwise by the jury. The Court 
has got the impression that you were not prominent in this matter. It 
has never been shown that you took a part in any of these raids, and 
any participation that you had, it appears, was not active. A man of 
3'our position in that County, having a knowledge of these facts, might 
have communicated them to the authorities. 

The prisoner. I couldn't do any more, sir, than what I did do. 

Judge Bond. You might have had some of these people punished. 
This extraordinary Act of Congress, under which jurisdiction has been 
given to the United States Courts to punish these things, would have 
been perfectly useless, if gentlemen in your position in York County, 
having found out what was -going on, had united to put it down. It 
seems that the, people preferred to live in amongst this outrageous Klan 
rather than under the government of law. Seeing the little connection 
which appears from the evidence that you had with it, the judgment of 
the Court is, that you be fin^d 8100, and be imprisoned one year. 

The Court then adjourned till Wednesday morning, December 27, at 
11 A. M. 



Part VI. 



THE CASE OF JOHN S. MILLAR. 



Columbia, December 27, 1S7L 

After the Court had disposed of some miscellaneous business, Mr. Cor- 
bin announced that he was ready to proceed with the case of the United 
States vs. John S. Millar, and the following jurymen were empanelled 
and sworn : 

John Nott, colored ; Phillip Salter, colored ; C. H. Bankhard, white ; 
Joseph Keeu, colored ; Joseph Smith, colored; Cyrus Alston, colored; 
William Smith, colored ; John Freeman, colored ; Henry Fordham, 
colored; Joseph Munnerlyn, colored; John A. Pugh, colored; E. John- 
sjtm, colored. 

Mr. C. H. Bankhard was appointed by the Court foreman of the jury. 

John S. Millar was then arraigned.* 

THE TRIAL. 

Mr. Corbln, in opening the case to the jury, said : 

Gentlemen of the Jury : 

I desire only to offer you one word of explanation in reference to the 
cause that will be presented to you. The indictment which has been 
read to you contains but one count. We shall show to you : first, that this 
defendant is a member of the Ku Klux Klan ; that he was present at 
two meetings of the Klan. We shall show to you the nature and pur- 
pose of the Klan ; how they were to be carried out, and how, finally, 
they were carried out, by whipping and killing the colored members of 
the Radical party ; practising all sorts of atrocities upon them ; and 
committing all crimes known in the catalogue of offenses, and this for 
the purpose of hindering, preventing and restraining them from exer- 
cising the right to vote. 

* This defendant was arruimied on an indie; ment which is substantially the same 
as the iirst count in the iadictmonf, in the case of Allen Crosby et al. See Appendix. 



608 

TESTIMONY OF ELI AS RAMSEY., 

Elias Ramsey, a witness for the prosecution, being duly sworn, testified 
as follows : 

Direct Examination by Mr. Corbin. 

Q. State where you live, and what you know about this case ? 

I live in the southwest portion of York County; I know the prisoner, 
Millar, and haye known him for three or four years ; I was a member of 
the Ku Klux Klau ; Chambers Brown swore me iu at Hickory Grove, 
in York County ; [the constitution and by-laws of the Ku Klux Klau 
organizavion were here read] ; that is the oath to which I swore when I 
was initiated ; the oath was read, and I repeated it after Chambers 
Brown ; I saw four others initiated after that, in May, and also one at 
another time ; I was at one regular meeting of the order, when they met 
to elect officers; Squire Samuel Brown was there; also, Chambers 
Brown, John S. Millar, Napoleon Millar, Samuel Ferguson, William 
Sherer, James Sherer, Hugh Sherer, Sylvanus Sherer, Hugh Kell, 
Banks Kell, Sherod Childers, Robert Riggins, Henry Warlick, and Ro- 
bert Hayes Mitchell ; that meeting was at Sharon Church, in the western 
portion of York County, about eight or nine miles from Yorkville ; the 
meeting was called to elect a chief; those who were in favor of Robert 
Riggins stepped forward, an<l in this way they voted; I did not notice 
John S. Millar step forward^ but I know he was present in the meeting 
when it voted ; next, they elected in the same way, a monarch, Chambers 
Brown ; next, they elected the Turk, and then they elected a eoniraittee 
of three tt) examine candidates for admission into the order; Wm. Sherer 
was one, Banks was another, and I was another. 

The general purpose of the Ku Klux Klan order was to keep the Rad- 
ical party from voting, and this they were to do by raiding amongst them 
in the night time; when on these raids they were armed with pistols, and 
had disguises on, 

I never was on but one raid ; that one was on Jim Williams; we met 
about 'Squire Wallace's, about ten o'clock; we were about nine iu num- 
ber; then we were joined by another party of about twenty-five, making 
thirty-four in all ; Hugh Kell halted the other party as they came up ; 
" Who goes there?" said he; "Friends of our country," they replied, on 
which they were ordered to advance; it was at this time that the four 
Sherer boys were sworn in ; the whole party then mcunted and started 
down the road by Wallace's, passing by Henry Latham's, where we got 
water; we went on to McConnellsville, and I heard talk among the 
crowd that the object of the raiil was to seize guns ; we stopped and 
dismounted, when most of the party started off, but Chambers Brown 



609 

told me to go back and remain with the horses, and, in .case I heard 
a pistol fired, to bring up the horses ; while I was remaining there, two 
men, Dr. Love and Mr. Latham, came up; I halted them and told them 
to remain there till farther orders ; Alonzo Brown, when he came back, 
spoke to them ; he asked Mr. Love if he knew where any guns were, 
and Mr. Love said that the guns were about Bethesda Church; a major 
of the militia, he understood, had them. 

As they went on I noticed they had a black man on a mule, and 
some one in the party told them to set him down ; the crowd crossed 
the railroad, and in traveling on they became scattered very much, es- 
pecially as the roads were muddy, and I suppose it was one hundred 
yards from the head of tbe line to the rear, or more ; shortly after we 
struck the woods I heard them say that they were going to hang Jim 
AVilliaras ; we traveled on, I suppose, two miles from where we stopped, 
Avhen the crowd got off their horses and hitched up. I heard no order 
given, but the front part of the crowd went off through the woods ; I sat 
down ; they were gone perhaps half an hour ; presently Hugh Kell came 
past me, and John Caldwell came up ; while they were absent I heard 
something like the voice of a woman ju distress. When they came back 
they mounted their horses and started ; as we got into the old field 
James Neil said to me something to the efl^ect that some men were pow- 
erful hard hearted. We went on through the field some distance, and 
came out into the big road that leads from York to Chester. The first 
house we came to was a black man's house on the right of the road ; 
there were several persons in the house ; and as I rode uj) with the 
party, I heai*d Dr. Bratton say not to go for the old man, if he behaved 
himself ; if he would be a good old man he would not be bothered. 

Just after passing Mrs. Bratton'?, we fell into line, one portion of the 
crowd to the right, and the other to the left ;'I Vv^as with the left. The 
party I was with, went up the big road to John S. Bratton's house, 
where we stopped a few minutes, ,till the party that had taken the right 
came up, with several guns that they had taken. When I rode up, 
crackers and whiskey was passing around among the men ; some of 
the boys said there was ham and cheese, but I didn't get any. The 
guns they had, looked like to number about twelve to fifteen. 

William Wilson then said he wanted five or six men to go to J. S. 
Bratton's house ; I was one of them that went ; we went into the piazza 
and hollowed ; at last he came out in his underclothes ; they asked 
him what he meant by so many guns being on his place ; that if they 
catched any more guns on his place, they would hold him responsi- 
ble ; he said he didn't own all the black people, and to hold him re- 
sponsible, it was not right; he also said he had not voted the Radical 
ticket. We then left. 
39 



610 

Chambers Brown said, (sj^eaking about some niggers in Chester,) 
if these niggers didn't leave they woukl go like Jim Williams — that 
he was hung for his principles. He said he was an old Radical 
amongst the niggers down there, and that he consumed a great deal 
of time mustering with his company. 

Cross-Examination by Mr. Wilson. 

Q. Was John Millar ever sworn into the Ku Klux Klan ? 

A. I never saw him. 

Q. Never saw him initiated? 

A. No, sir. • 

Q,. Did you ever know of his being on any raid of the Ku Klux 
order ? 

A. No, sir. 

Q. You never saw him but on that one occasion, when there was a 
meeting for some purpose at Sharon church ? 

A. I saw him at Sharon church the night the company was organ- 
ized. 

Q. That is the only time you ever saw him with the Ku Klux ? 

A. Yes, sir. 

Q. Do you know of his taking part in any way in any case of vio- 
lence, by the Ku Klux ?. 

A. I do not ; I understand he was there at the next meeting ; I was 
not there, though. 

Q. YdU understood that ? 

A. Yes, sir. 

Q. Do you know why he went to that meeting that night ? 

A. No, sir ; I didn't ask him what his reasons were; I supposelike all 
the rest of us. 

Q. Do you know of his going there with a cousin of his, and out of 
curiosity ? 

A. I don't know who he came with ; I saw him there. 

Q. Do you know, in any way, that his object was curiosity to find out 
what the Ku Klux was ? 

A. No, sir; I didn't know that. The Ku Klux didn't allow a man in 
without he was going to be a member ; they didn't allow them in their 
secrets. 

Q. Did you say Brown was captain of that Klan ? 

A. Chambers Brown was chief till that night. 

Q. Was that the Klan you belonged to ? 

A. Yes, sir. 

Q. You were with that Klan on its raids ? 



611 

A. I was' with tliem on its raids. 

Q. After that ? 

A. No, sir ; that was the last time I was with them. 

Q. You never ipet with John Millar on any occasion excepting yon 
saw him that night at the meeting at Sharon? 

A. That is the only place, sir. 

Q. Do you know of the Klau having visited Mr. Millar, and threat- 
ening him? 

A. No, sir ; I never heard it. 

Q. You were not present when that was done? 

A. I was not present, nor I never heard it. 

Q. Was it considered dangerous in that neighborhood, at that time, 
for any one to oppose the Ku Klux ? 

A. Dangerous in what w-ay, sir ? 

Q,. Dangerous to the party that opposed it? 

A. I don't understand you. 

Q. If a person did not belong to the Klan, or if a person was at all 
opposed to the Klan, was it considered dangerous in that neighborhood? 
YV^hy did you go into it? 

A. I went into it, sir, for protection ; from what I was told I thought 
I had better go into it. 

Q. You didn't know? 

Mr. Corbin. Let him tell the whole. 

Well, they came to my house, the Ku Klux did, in November in '70, 
the last of November, about the 27th or 28th, to my recollection ; they 
came to my house the first time they were in York County that ever I 
heard of, or in the portion of country where I live. I had been off that 
day and came home at nine or ten o'clock in the night, and a black man 
kad stole some money from me, and my sister had told me that if I would 
go and get a warrant she thought I could find him. I mounted my horse 
and started, and after I left home about three hundred yards, I meets up 
with the Klan ; I didn't know what they were ; they frightened me so 
that I went back to the house as hard as I could go ; they came right 
after me. I just went back to the house and hollered, to know by the 
boys whether they were there or not. I had told them to go to the black 
man's house and keep him there until I came with the warrant. I hol- 
lered, and they answered me, and by that time the Ku Klux had rode 
right up and asked me what in the hell I meant ; I told them nothing, 
only I was on business. They wanted to know what in the hell business 
I was on. I told them I was after a warrant to arrest a nigger for open- 
ing my store ; and from that the party passed on by me ; one part of the 
party went into the yard and the other part put me under arrest. They 
were in the yard, in the house, and in the store drinking whiskey, taking 



612 

tobacco, and came out, I didn't understand what they were up to. My 
brother-in-law was living with me, and he had gone over to Robert Rig- 
gans' during the time they w'ere drinking and carousing. I was sitting 
on my horse, under arrest, and Robert Riggans and Rufus White, my 
brother-in-law, came up and I said to them, " them two men is all right." 
Some men came up, off at a distance, and I said, "those two men are all 
right," and one fellow pulled his pistol out and said, " if you say that 
again, God damn you, I will blow you through." They jerked 
AYhite by each shoulder, and took him off, and said "he was 
the man they wanted." Just after they rode up the road a 
piece, one rode back to me and said, "go and tell that disdressed woman 
we are not going to kill her husband, we are going to whip him." I 
mounted my horse, and went to the house and told my sister that they 
wasn't going to kill him ; that one had told me they were going to whip 
him. They took him off, and I heard the licks very plain, just above 
the house, about two hundred yards, and they told me to go back to the 
house and behave myself, and they wouldn't meddle with me any more 5 
and a part of the crowd come running back as hard as they could come 
to frighten me, and I started to run, but I stopped, and they hollered 
they wanted whiskey. I stepped to the house and told them I would see 
if the key was there. I Avent in the house and found the key wasn't 
there. I said to them men : " I haven't got the key," and they swore 
they must have whiskey anyhow. I went back, and told them if they 
would wait, I would see if I couldn't get it, and I got the axe and pried 
the door open ; one fellow comes to me and jerked the axe and broke the 
latch all to pieces, and went in and drunk what whiskey they wanted, 
and called for tobacco. I set them out on the counter, and they helped 
themselves to them, and the party then started, and one of them turned 
around in the door and says : " Now, God damn you, close this business ; 
and if you don't do it, we will never pay you but one more visit." I 
said : "T have bought those goods ; I am owing some money, and what 
will I'do ?" They says : " We don't mean that you should close right 
now ; but, damn you, close as soon as you possibly can ; we will never 
pay you but one more visit." It frightened me very much ; and in three 
or four weeks after that, Hugh Kell told me to move that whiskey I had 
in the house, for the Ku Klux Avere coming on me to-morrow night 
again, and if I didn't, they would destroy what I had. That was on the 
Thursday before Christmas. I moved my whiskey out, and rode up to 
York, not knowing but what they might find me if I remained in the 
neighborhood. On my way, I meets up with Theodore Bycrs. He got 
to talking to me, and asked me if his niggers' had not brought me some 
cotton. I told him they had not ; and he said : " Don't you want to 
join this Older?" Says I: "What order?" My recollection is that it 



613 

was after Christmas, some time in January. I told him no, •! didn't 
know, and he commenced giving me signs I didn't understand. He says : 
"Damn it, you don't know nothing." Says I: "No, sir, I don't 
know nothing about your signs." He says : " If you want to go 
into this thing, you go to York, and Major Avery will initiate 
you." Says I: " AVhen I take a notion about it, I will do so." 
Some time after that, I seen Chambers Brown, along in the last of 
Januar3\ He named it to -me, and wanted me to join. I told him no, I 
didn't believe I would ; and the next time I met up with him, on Suuday 
morning, the morning I Avas initiated, he wanted me to join. I told him 
I didn't care anything aboutgoingiuto it, and he says: "You had better go 
into it, for I saved ;^your life that night that they were at your house ; 
they would have shot you if it hadn't been for me, and you had better go 
into it." I studied a few minutes, and says: " Well, I will go into it." 
He says : " Now I want you to go with me to-night." Says I : " Where 
to ?" He says : " There will be a chance for you to make some money." 
I told him that I wouldn't go ; that I had lived without making money 
that way, and I wouldn't go. Weil, I went into it then — was just taken 
in. He swore me in that morning. 

Q. Did you ever see Mr. Millar with a disguise on ? 

A. No, sir. 

Q,. So you never saw him initiated, never knew him to be sworn in 
or on any raid, and never saw him with a disguise on. All you know is 
that you saw him at that meeting that night at Sharon church ? 

A. That is all. 

Be- Direct Examinatio n. 

Q. Did you see him have a pistol there ? 
A. No, sir ; didn't see any pistol. 

TESTIMONY OF ANDREW KIRKPATRICK. 

Andrew Kirkpatrick, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corbin. 

Q. Where is your home ? 

A. Seven miles and a half from Yorkvills, in York Count^. 

■Q. Do you know this i:)risoner, John S. Millar. 

A. Yes, sir. 

Q,. How long have you known him ? 

A. I have known him two or three vears. 



614 

Q. State whether you have seen him present with the Ku Klux 
Klau at their meetings ; if so, when ? 

A. I have seen him at one meeting at Sharon last spring. 

Q. When was that ? 

A. It was along about the last of April or the first of May, I think. 

Q. Was that a regular meeting of the Klan ? 

A. Yes, sir. 

Q. Called by whose order ? 

A. 1 don't know who ordered it, exactly. Henry Warlick was the 
man that told me about it. 

Q. Who was the Chief of the Klan ? 

A. Chambers Brown was .chief until that night, and then Robert Rig- 
gans was elected tliat night. 

Q,. Did Henry Warlick tell you who ordered it ? 

A. No, sir. 

Q. You went to the meeting ? 

A. Yes, sir. 

Q. Whereabouts was it held. 

A. Held there at Sharon Church. 

Q. What time of the day or night was it ? 

A. Well, I don't know, exactly, what time it was ; I suppose eight or 
nine o'clock. May be later. 

Q. Who was present at the meeting ? ^ 

A. Bob Riggans and the four Shearer boys, Hayes Mitchell, Elias 
Ramsay, John Millar — 

Q. This defendant? 

A. Yes, sir. Pal. Miller, Chambers Brown, Sam Ferguson and Bill 
Ferguson, Mr. Brown there, [pointing.] 

Q. Squire Sam Brown ? 

A. Yes, sir. 

Q. Do you remember anybody else ? 

A. Henry Warlick was there, and Banks Kell. 

Q. How many should you think in all were present ? 

A. I don't know exactly how many there was. 

Q,. There were others that you don't remember or did'nt know ? 

A. I don't mind whether there was any others there or not. 

Q. What business was transacted that evening, and how was it done ? 

A. Thcy^didji't do anything but elect some officers. 

Q. Who did they elect ? 

A. Elected Robert Riggans as Chief. 

Q. Tell us how they elected him — how they voted ? 

A. Every man that preferred him stepped off to one side. 

Q. All stand in line first ? 



615 

A. -Yes, sir. 

Q. Was that the order? Who gave the order to form in line ? 
• A. They said, " All in favor of Robert Ejggans stand up one sidej 
and them in favor of Chambers Brown step over next to him." 

Q. That is the way they voted ? 

A. Yes, sir, 

Q. They elected Robert Riggans Chief; whom did they elect other 
officers? 

A. Tffey elected Pol. Miller as Turk, and Chambers Brown as Mon- 
arch. 

Q. Any other officers? 

A. Not that I know of. 

Q. Did you see Millar there, taking part with the rest ? 

A. Yes, sir ; he was there. 

Q. Did he vote with the rest — step around with the rest ? 

A. Yes, sir; I think he did. 

Q. Did he act just like the rest of the members present. 

A. Yes, sir ; I believe he acted pretty much the same way the rest 
did. 

The Court. The proper question to ask is, What did he do ? 

Q. What did he do ? 

A. I didn't see him doing anything ; when they was voting he stepped 
off with the rest. 

Q. (by the Court.) Did you see him step off? 

A. Yes, sir ; he stepped off with the rest. 

Q. Did you attend any other meeting of the Klan, at Sharon ? 

A. Yes, sir ; we met there the night that we had the last little ride. 

Q. Was that before or after this meeting ? 

A. It was after, I think. 

Q. How long after ? 

A. A week or ten days. 

Q. Who were present at that meeting ? 

A. There was Chambers Brown, Alouzo Brown, John Millar — 

Q,. This the John Miller? [pointing to the prisoner.] 

A. Yes, sir. Pol Miller and Dan Carroll. They was there until we 
got ready to start, and they said they was going home. 

Q. Who went on the raid ? 

A. The four Shearer boys. Bob Riggans, Hayes Mitchell, and several 
others. 

Q. Wiiat was the first business done that evening ? 

A. When they met, we went to putting on disguises the first thing, 
them that had them. 



616 

Q. Those that had disguises put them on ; those that had none, what 
did they do ? 

A. They didn't do anytlijng. 

Q. Do you know whether Millar had a disguise or not : 

A. No, sir ; I don't think he did. 

Q,. Why didn't he put one on ? 

A. I don't suppose he had one there. 

Q. Did those that didn't have disguises go on the raid ? 

A. No, sir ; they went home. * 

Q. Why didn't they go ? 

A. I don't know. 

Q. What was the reason they didn't go ? 

A. Because they had no disguises, or may be naturally they didn't 
want to go. 

Q. What understanding was there at the time ; what conversation in 
reference to those that had disguises and those who had none ? Do you 
recollect anything about it ? 

By the Court. State what was said or done. 

A. I don't recollect now what was said. 

Q,. Just before you went, what was done by those who had no dis- 
guises ? 

A. They went home. 

Q. Who was it went home without disguises ? 

A. John Millar, Dan Carroll, Chambers Brown, Alonzo Brown, Pol. 
Millar ; and Samuel Kamsay started with us a-piece, and then he left and 
went home. 

Q,. Those that went home didn't have disguises ? 

A. Not that I seen. 

Q,. Those that had disguises went on the raid ? 

A. Yes, sir. 

Q. Where did you go ? 

A. The first place, I believe, we went up to Mr. Brown's ? 

Q. Squire Sam Brown's ? 

A. Yes, sir. 

Q. What did you go and see him for ? 

A. Just for fun, I reckon. 

Q. You knew him to be a member of the Klan ? 

A. I seen him at a meeting ; I don't know whether he belonged to it 
or not ; I didn't see him put in. 

Q. What did you do at his house ? 

A. They brought him out to the gate, I believe. 

Q. What else ? 

A. Some of them was talkinorto him a little. 



617 

Q. What did they talk about? 

A. I don't know; I couldu't hear; I was sitting on my horse in the 
road. 

Q. Did they do anything besides talking a little? 

A. No, sir ; I didn't see them do anything else. 

Q,. Where did you go then ? 

A. To Mr. Ed. Byers'. 
'Q. What did you do there ? 

A. Wasn't anything done there ; brought Sam Ramsay out, I believe, 
after he got home there. 

Q. He was a member of the Klao, too, wasn't he ? 

A. I didn't see him put in ; he was with us that night a little while. 

Q. He got home before you did ? 

A. Yes, sir. 

Q. What did you do there ? 

A. Didn't no anything, only brought him out to the gate, and made 
him run across the yard a time or two. 

Q,. And had a little fun with him ? 

A. Yes, sir. 

Q. Was that the understanding ? 

A. Yes, sir. 

Q,. He was not scared any, was he, on account of your visit ? 

A. Well, he hollered and went on like he was scared. 
. Q. What did you think about it ? 

A. I didn't know. 

Q,. You didn't do anything to him ? 

A. No, sir. 

Q. What did you do next ? 

A. We got on our horses, and the next place we went, I believe, was 
Elias Ramsay's. 

Q. What did you do there ? 

A. We brought Charley Russel out — a colored man living with 
him — and made him dance a little. 

Q. What was that for? 

A. The reason they brought him out was because he had made his 
brags that the Ku Klux could never catch him, so we thought we 
would slip up and show him that we could catch him, and made 
him dance a little. 

Q. Then you let him go ? 

A. Yes, sir. 

Q,. Where did you go next? 

A, Went home. 

Q. You have been on other raids, haven't you, besides that ? 



618 

A. Yes, sir ; before that I did. 

Q. How mauy raids have you been on ? 

A. Some three, I believe. 

Q. Were you on the Jim Williams raid ? 

A. Yes, sir. 

Q. What other raid were you ou ? 

A. Henry Latham. 

Q. What did you do to him? 

A. He was whipped that night? 

Q. Anybody else whipped that night ? 

A. I didn't see any one else whipped. 

Q. What other raids were you on ? 

A. That made the three, I believe. 

Q. How old are you ? 

A. Twenty years old, last June. 

Q. When did you say you joined the Klan? 

A. I joined it in February, I think. 

Q. Who swore you in ? 

A. Chambers Brown. 

Q. Do you remember the oath you took ? 

A, No, sir. 

Q,. Do you remember anything about it ? 

A. I remember the last part of it. 

Q. What was that ? 

A. The traitor's doom shall be death, death, death. 

Q. Would you know the rest of it if you should hear it, do you think ? 

A. 1 don't know whether I would or not. 

Q. Listen to it ? 

[Counsel read the obligation in evidence in previous eases.*] 

Q. Do you recognize that oath ? 

A. I don't know ; it may be the same one or not. 

Q. What about the last portion of it ? 

A. It is the same, I believe. ' 

Q. You remember that much ? 

A. Yes, sir. 

Cross-ExaminatioH by Mr. Wilson. 

Q. How many were there that night? What number do you sup- 
pose — the first meeting you spoke of, when they elected officers ? 
A. I don't know how many. 
Q,. As many as twenty -five ? 

*Seo Tart II, case of Robert Hayes Mitehcll, page 153. 



619 

A, I don't know whether there was or not. 

Q. Do you think there were as many as twenty ? 

A. There might have been and might not ; won't say for certain. 

Q,. You stated that you thought that John Miller, when they were 
voting for Chief, that he stepped to one side ; can you be positive or cer- 
tain about that ? 

A. I think he stepped over. 

Q. Are you positively certain of it — can you be certain ? 

A. I won't say for certain. 

Q. You think so, but you cannot be positive; is that what you say ? 

A. Yes, sir. 

Q,. Now, did you ever see Mr. Miller with a disguise ? 

A. No, sir ; I never did. 

Q. On any occasion ? » 

A. No, sir. 

Q. Did you ever see him with a pistol ou any occasion ? 

A. No, sir. 

Q. Did you ever see him Avith the whistle that the Ku Klux carr}'? 

A. No, sir. 

Q. Did you ever know of his ever being on any raid by the Ku 
Klux ? Did you ever see him ? 

A. No, sir ; I never seen him ou a raid. 

Q. Have you any way of knowing whether Mr. Miller Avas taken to 
that first meeting by his cousin. Napoleon Miller, and went out of curi- 
osity to see what it was ? 

A. I have heard that since that time — I didn't know it then. 

Q. You have heard that that was what took him there ? 

A. Yes, sir. 

Q,. At the second meeting — about a week afterwards — Mr. Miller, I 
understand you, had no disguise on ? 

A. No, sir. 

Q. Did he take any active part in any way? 

A. No, sir ; I didn't see him doing anything at all there. 

Q,. Do you know whether or not Mr. Miller was uneasy for fear the 
Ku Klux would interfere with him and the colored men on his planta- 
tion ? 

A. No, sir ; I don't know whether he was or not. 

Q. Do you know of a Klan visiting him, and threatening, him one 
night ? 

A. No, sir. 

Q. Those were the only two meetings that you ever saw Miller present 
at? 

A. Yes, sir. 



620 

Q. And he didn't have a disguise or any arm on either of those occa- 
eions ? 

A. No, sir ; not that I saw him. 

Q. And you never knew him to take part in any case of violence com- 
mitted by the Klau ? 

A. No, sir. 

Re-Direct Exaviination. 

Q. AVhen the vote was taken, state whether all the parties that were 
present stepped one side or the other, to indicate their preference ? 
A. Yes, sir. 

JTESTIilONY OF JOHN RAMSEY. 

John Ramsey was the next witness called. He was sworn, and testi- 
fied as follows : 

' / 

Direct Examination by ,Mr. Corbin. 

Q. Do you know this prisoner? 

A. Yes, sir ; I ha.ve known him for two or three years. 

Q. State whether you are a member of the Ku Klux Klan ? 

A. Yes, sir ; I was initiated in 1868, at Yorkville. 

Q. By whom ? 

A. Well, there was four or five men in the room, I believe : Squire 
Brown, James Smorford, Albertus Hope, and, I think, Washington 
Hope. I don't recollect whether there was any others or not. 

Q. Do you remember the oath that you took ? 

A. Well, no, sir; I can't say that I recollect it alh 

Q. You recollect any portion of it ? 

A. Some portions. 

Q. State what you recollect of it. 

A. [ recollect part, that they did not divulge nor cause to be any 
secrets divulged. 

Q. Any secrets of the order? 

A. Of the order. 

Q,. Do you remember any other feature of it ? 

A. AV^ll, I don't recollect that I do. 

Q. Would you know the oath? If you should hear it, would you 
recognize it ? ' 

A. Well, I don't know. 

Q. I will read it to you [reads the obligation.] 

A. I don't recollect whether there was that much of it or not. 



621 

Q. Do you recollect the last portion of it ? 

A. Yes, sir ; I thiuk that what I told you. 

Q. Whether you recollect that you were to oppose and reject the prin- . 
ciples of the Radical party ? 

A. I don't recollect whether that was in it or not ; if it was, I don't 
recollect it. 

Q. Do you know whether it was or not. 

The Court. He says he don't recollect it. 

Mr. Corbin. Well, if your Honors please, all I want to know is whether 
he is positive about anything in reference to it. 

Q. Who swore you in ? 

A. Well, sir, I can't tell you the man particularly. 

Q. What was the process of initiation ? ^ 

A. I was blindfolded, and knelt down on the floor. I think I might 
think such a one swore me in, but I don't know particularly. 

Q. Who do you think swore you in ? 

A. I judge it was Squire Sam Brown. 

Mr. Wilson. State only what you know. 

Q. Well, Mr. Ramsey, were the signs given to you ? 

A. Yes, sir. 

Q. Tell us what the signs were? 

A. Well, I believe the first one was similar to that [passing right hand 
over right ear], and the other was returned with the left ; then, second, I 
think, was to feel, as if you was feeling for a pin, in the lef£. lappel of 
the coat ; next, was to slip your hand in your pocket and leave your 
thuml) out. 

Q. And the answer was by the other hand ? 

A. Yes, sir. • 

Q. What else ? 

A. Then if you was passing and met up with a man, and w^anted to 
to fiiid out whether he belonged to it I "s-a-y," and he would return 
" n-o-t-h-i-n-g." 

Q. Any thing else. 

A. I believe that is about all that I kuoAV about them. 

Q. Whether you know the grip ? 

A. Well, yes, I believe there was a grip ; it was to slip the little 
finger — 

Q. To lock the little fingers together? 

A. Yes, sir. 

Q. What else? 

A. I don't recollect. 

Q. Was there any pass Avord ? , 

A. None, only what I have said that I know of. 



622 

Q. No single word used ? 

A. No, sir ; not as I know of. 

Q. How could you get into meetings of the order ? 

A. I never tried to get into meetings. 

Q. Do you know whether there was formality in getting in ? 

A. I don't know. 

Q. Did you ever attend a meeting there afterwards ? 

A. No, sir ; not at Yorkville. 

Q. Did you attend meetings ? 

A. Well, the last meeting, when I attended, was at Sharon Church. 

Q. When? 

A. It was in, I think in May; last May I think it was. 

Q» Who were present at that meeting ? 

A. There was two of Mr. Brown's sons. 

Q. What were their names? 

A. Alonzo and Chambers ; John S. Miller — 

Q. This prisoner ? 

A. Yes, sir; and* Napoleon Miller and Dan Carrol, my brother Sara, 
and Kirkpatrick. 

Q,. Andy Kirkpatrick ? 

A. Yes, sir. Mr. Riggans. 

Q. What Riggans ? 

A. Robert Riggans, and some of the Shearer boys, I believe, was there 
that nighk 

Q. Who was Chief? 

A. It was said by them that Mr. Riggans was the Chief 

Q. What was the object of that meeting ? What did you do ? 

A. We did'nt do anytliing particular, I don't believe; only I think it 
was spoke of that they would go down there and meet, may be, and let 
them know that we would still hold on to the organization ; something 
til at way. 

Q. It was resolved to still continue the organization ? 

A. Yes, sir. 

Q" Did you do that? 

A. We didn't meet there, not thereafter ; and then after we broke up 
there, some went home and some — Mr. Miller, he went home, he and Na- 
poleon Miller, and Dan Carrol, and Chambers Brown, and Alonzo, they 
went home, but the rest of us went by Mr. Brown's, and from there to 
Edward Byers' and down by Mr. Black's and by Elias', ray brothers, and 
then we parted. 

Q. Part of you have disguises on ? 

A. Part of us had disguises. 

Q. Do you know whether the defendant had a disguise or not ? 



623 \ 

A. I don't thiuk he had ; I don't recollect exactly, but I don't think 
he had. 

Q. Now, Mr. Kamsay, in meetings of the Klan do you allow jDersons 
present who are not members ? . \ , 

A. No, sir, unless they wish to go into it. 

Q. Then they go there for the purpose of being initiated ? 

A. Yes, sir. 

Q. Did you have conversation with this man that night, John S. 
Miller ? 

A. I don't know that 'I did, particular. 

Q. Any conversation at all ? 

A. More than just speaking. 

Q. What was he doing around there ? 

A. I don't know that he was doing anything particular. 

Q. Whether he was doing what the rest Avere doing? 

A, Well, I don't know ; don't recollect ; can't say that I recollect that 
he taken any part in any way. 

Q,. Do you recollect anything particular about him except seeing him 
there with the rest ? 

A. No, sir ; I do not. 

Cross-Examimdion hy Mr. Wilson. 

Q. Did they sometimes allow persons to come with their friends to see 
whether they would join or not? 

A. No, I never knew any person to come. 

Q. You don't know of any case of that kind ? 

A. No, sir, 

Q. You state that you don't know whether Mr. Miller was ever initia- 
ted or not ? 

A. I don't know that he was. 

Q. You never knew of his taking the oath ? 

A. I never knew. 

Q. You didn't see him with a disguise or on any raid ? 

A. No, sir. 

Q,. Ever see him armed with a pistol or have a whistle ? 

A. Not that I recollect. 

TESTIMONY OF SAM FERGUSON. 

Sam Ferguson, a witness for the prosecution, being duly sworn, testi- 
fied as fellows : ' 



, 624 

Direct Examination by Mr. Corbin. 

Q,. Did you join the Ku Klux in York County last spring? 

A. Yes, sir. 

Q. Whether you attended any meeting of the Klan, at Sharon 
Church ? 

A. Yes, sir. 

Q. When? 

A. It was in the spring. 

Q. What time in the spring, what month ; do you remember ? 

A. The last of April, in April ; I ain't certain when it was. 

Q. Who were present at that meeting ? 

A. Well, there was ; do you want to know the whole crowd ? 

Q. Yes ; all that you qau remember. 

A. There was Bob Riggans, and four Shearer boys, and Hayes Mitch- 
ell, and Mr. Brown — Chambers Brown, and Pol. Millei;, and John S. 
Miller. 

Q. That is this man ? 

A. Yes, sir. 

Q. Well, go on? 

A. And my br(jther and Bob Harkness — my brother's name is Wil- 
liam. 

Q. Who was the commanding officer or chief that night ? 

A. Chambers Brown. 

Q. What was done at the meeting? 

A. We|l, they elected another chief. 

Q. Whom did you elect c^iief ? 

A. Mr. Robert Riggans. 

Q. What otlier officers did you elect that night ? 

A. Elected two other officers. 

Q. Do you remember what they were ? 

A. One was Turk, and I forget what the name of the other was. 

Q. Yfho was elected Turk? 

A. Pol Milter was elected one; I don't know whether it was Turk, 
or the other ; Chambers Brown was elected the other. 

Q. Did they elect anybody Monarch that night? 

A. There was three ; yes, sir ; I think that was the name of it. 

Q. How did you elect them? 

A. What was going fur one side, stood on one side in tlie line with the 
one whoever it was, and one that was going for the other, stood on the 
other side. ■• 

Q. Did you see this defendant voting with the rest ? 

A. I don't mind whether I seen him voting or not; seen him there. 



625 

Q. Anything else done that night ? 

A. No, sir ; I don't mind anything in particular. 

Cross-Examinatlon by Mr. Wilson. 

Q. Do you know of the Ku KIux Klan visiting and threatening 
you? 

A. I know of them threatening me. 

Q. Do you know of them visiting and threatening John S. INIillar the 
same night ? 

A. Yes, sir ; I heard them saying of it there. 

Mr. Corbin. Heard whom saying it ? 

A. I think I heard him say it. 

Q. Whom did you hear say it ? i 

A. I heard Pol. Millar say so, often. 

Q. Was he a member of the order? 

A. I think Tie was. 

Q. Have you seen him on raids ? 

A. Yes, sir ; I seen him at that meeting too. 

Q. Did he state that he was visited and threatened ? 

A. He did not say he was threatened. 

The Court. What did he say ? 

A. He just said they were there at John Millar's. 

Q. What did they do there ? 

A. Didn't say what they done ; he said them Ku Klux was at John 
Millar's. 

Q. He said he was there; did he say anybody else was with him? 

A. Aly Stewart, I think. 

Q. Was he a Ku Klux? 

A. Yes, sir; I think he was. 

Q. Anybody else ? 

A. He didn't say anybody else. 

Q. Did he state whether they went in disguise or not ? 

A. Didn't say, sir; I know they had their horses covered when they 
were at our hou^e. 

Q. Was that the same night they were at your house ? 

A. I think it was the same night. 

Q. And they had the horses covered ? 

A. Yes, sir. 

Q. You mean that the horses were disguised ? 

A. Yes, sir. 

Q. About what time of the year was that — what month ? 

A. I think it was the last. 
40 



626 

Q. How long before this meeting at Sharon Church ? 

A. I think about two months, may be ; I won't be certain. 

TESTIMONY OF THOMAS L. BERRY. 

Thomas L. Berry, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corhin. 

Q. Are you a resident of York County ? 

A. I am, sir. 

Q. What portion of the County do you reside in ? 

A. Western portion. 

Q. State whether you were ever initiated into the order known as the 
Ku Klux Klan ; if so, when and where ? 

A. It was about the last of January, and at Wesley Smith's. 

Q. What was the process of initiation ? 

A. You had to kneel down ; I knelt down, and there was a Bible 
put on a box in front of me ; I was blindfolded, and the oath was 
administered. 

Q. Would you remember the oath if you should hear it again ? 

A. Yes, sir ; I think so. 

Q. Perhaps you can tell what it is without hearing it ? 

A. No, sir, I can't ; I never heard it but one time. 

Q. I will read this oath to you, and see whether it is the one that 
you took. (Reads oath.) 

A. That is the same, sir. 

Q. Who was present at the time you were initiated ? 

A. Wesley Smith and Dr. Mason Smith, and my brother. 

Q,. Was it in the day time, or niglit ? 

A. In the day time. 

Q. What Klan did you understand you were initiated into? 

A. Into Smarr's Klan. 

Q. What Smarr's. 

A. Madison Smarr's. 

Q. Did they give you signs and pass-words ? 

A. Yes, sii\ 

Q,. State what they were ? 

A. This was the first, (passing right hand over the right ear,) and the 
other would return it with the left. This is the next, (putting right hand 
in right pocket, except the thumb,) and the other would return it with 
the left. 

Q. Any other sigu ? 



627 

A. No other sign — yes, sir, there was a grip. 

Q. What was that ? 

A. The forefinger weut up on the sleeve, in this way, [illustrating.] 

Q How were the fingers fixed ? 

A. Just like shaking hands. 

Q. Little fingers placed in any peculiar "manner ? 

A. No, sir ; just in that way, only the forefinger was in front, and that 
pressed on the leaders. 

Q. Say whether you were present at any meetings of the Klan ? 

A. Yes, sir ; I was present at three. 

Q,. What was the first one ? 

A. At Mrs. Latham's house. 

Q. Who ordered that meeting, and who was present? 

A. It was ordered by Madison Smarr, I suppose. 

Q,. The order came to you by him ? 

A. By him ; there was only myself and him and Miles McCullough 
present that night. 

Q. Anything done ? 

A. Nothing at all — no business talked of. 

Q. Why not ? 

A. Well, I suppose because there was such a small meeting. 

Q. Were you present at any other meeting ? 
^ A. Yes, sir ; at Hood's school house. 

Q. Who were present at that meeting ? 

A. There was John Hood and Simpson Hood, Lafiiyette Hood, Geo. 
Hood, Edward Good and James Brannon, I think, and there was an- 
other Mr. Good along, but I don't recollect his name — Ager Good. 

Q. What was done that night ? 

A. Well, sir, they put on disguises, and they went from there to Jim 
Plaxico's for a gun that he had bought from Wilson Wilson. The or- 
ders were, when they started — there was some six or seven of the men 
went — and orders were, if Mr. Plaxico had bought the gun, and paid some 
money for it, they was to corae back without the gun ; if not, they was to 
bring it. They came back without it. 

Q. Whether they had disguises on or not? 

A. They had di^gui.<es on ; yes, sir. 

Q. What was the rule in reference to wearing disguises on raids? 

A. It was to cover up the person, to keep persons from- knowing 
them. 

Q. Whether parties went on raids with disguises ? 

A. I don't think they did, sir; I never heard of it. That wasn't my 
understanding. 

Q. Now, Avhat did you understand were the objects of the Klan? 



628 

A. My notion was, that it was to tear down the party in power and 
build up the other party. 

Q. Do you mean by that the Radical party? 

A. Yes, f-ir. 

Q,. And build up the Democratic party ? 

A. Yes, sir. 

Q. How did you understand that that purpose was to be accora-. 
plished ? 

A. Well, it was to be done by whipping and killing — that was my un- 
derstanding. 

Q. Whipping and killing whom ? 

A. The members of the Radical party. 

Q. Now, Avbether you have ever known, or been told, by members of 
the Klan, of the killing of members of the Radical party in pursuance 
of that purpose ? 

A.. Well, sir, I know one man killed — Charley Good. 

Q. Tell us what you know about that, and how you know it ? 

A. On the 8th day of March I went to Yorkville. There was a set- 
tlement between me and Mr. R. S. Moore. I went up and returned home 
about eleven o'clock that night. Miss Mary Robinson says to me that 
Charley, she supposed, had gone down below. 

Q. Charley who? 

A. Charley Good. I went out and inquired amongst the black people, 
and' one of the boys on the place — a man I had always put confidence 
in — and he says Charley Good was at Jim Thompson's between sundown 
and jlark this evening ; that was about the time Mary Robinson said he 
was* down below ; that satisfied me that she was mistaken. Next morn- 
ing she stopped the school and wanted me to carry her home. I did ; 
and as I was coming ba^k a negro man hollowed to me to stop, and says, 
" I reckon now I will get the truth now," and he says, " is Charley Good 
down below or not?" That was on this Chester raid. I told him I did'nt 
know. Says he, " over at Mr. Hood's tlys morning, I heard he was shot 
last night about ten o'clock." I went on home, and on Friday morning 
I went over to Jim Thompson's to find out what time he had left, and 
Ji-m says he left directly after dark ; says I, " did he take any tools ?" 
"Yes." "Where did he say he was going?" "He said he was 
going home." I started on home then. And Wes. Smith was having a 
well dug — it was a piece off the road, and I concluded I would ride down 
there; and when I went down Mr. William White and Spencer was on 
top of the ground, and I asked them if they seen (h- heard of Charle}' Good ; 
they said they did not. Directly William Smith and J. Wesley Smith 
come down from them and stopped awhile, and I inquired of Wesley 



629 

Smith of Charley Good, and he said he didn't know anything about 
hira, 

Q. Was this the Wesley Smith that initiated you ? 
A. The same man. Says I, " gentlemen, I believe I will go home." I 
was going there a nearer way, and he says: "No, come back the otlffer 
way wii.h me." G.)ing along, I spoke something about Charley Good 
again, and he says: " Berry, you quit enquiring for Cl^arley Good, for," 
says he, "he is killed." Says I, " in the name of God, Wesley, and by 
whom?" He up and tells me that he and William Smith and Spencer 
and William White done the deed. Says I, " what for," he says that 
they had eave-dropped Jim Thompson's house, and had heard him make 
threats against little Joe Smith. 

Q. Heard who made threats ? 

A, Charley Good. That was about all the conversation that was 
passed there. In some four or five days after that, this man White com- 
pleted the well and come over to sell me the cow he got for digging the 
well; I says to hira, says I "you killed Charley Good ;" he says, "yes, 
sir;" says I, " what for?" " did you eave-drop Jim Thompson's house?" 
He says " no ; we got our supper, and got a single-barrel and double- 
barrel gun and waylaid him, and tied him to a pine sapling and shot 
him." 1 know tiiat he was put in the river ; he was moved on the Friday 
after that ; that was on the 10th of March. 

Q. Wiiy was he put in the river? 

A. I suppose to conceal it. 

Q. Were you present ? . 

A. I was, sir. 

Q. Describe it to the jurj', if you please ? 

A. That evening I was informed to come to help put him in the river, 
by Madison Smai'r. I refused to go. He says to me : " You have never 
done anything, and you have got to go ; they are threatening. yon now." 
Says I : " I suppose I will have to go." 

Q. What did you do ? 

A. We wrapped the body in bagging. 

Q. (by the Court.) Where did you find it ? 

A. We found it by this pine sapling, between Wesley Smith's, about a 
quarter and a half a quarter from Wesley's house, in a piece of v.'oods. 

Q,. What was the condition of the body ? 

A. Do you mean did it smell ? 

Q. Yes ; and how was it lying ? 

A. He was lying on his face. 

Q. Had it begun to decay ? 

A., He didn't smell any, sir. 



630 

Q. Do you know whether any means had been taken to prevent his 
smelling ? 

A. I don't know. 

Q. Whether he was tied to the pine sapling, then ? 

A. Yes, sir; his hands was crossed and then he was tied around the 
sapling. 

Q. Hands tied behind or in front of him? 

A. No, sir ; in front. 

Q,. Around the sapling? 

A. No, sir ; his hands were just crossed, and I think his hands was 
tied with a gallis, and probably with a rope. I didn't see whether the 
gallis was tied on the sapling or not. 

Q. "Was he suspended to the tree ? 

A. No, sir ; he was down ; the thing put around the tree was loose, 
and he was on his face. 

Q. Were there any bruises on his face? 

A, No, sir ; we didn't examine that. 

Q. He was dead ? 

A. Oh, perfectly dead ; and White said, when he shot him, he turned 
the butt of his gun and sunk the cock into his head. 

Q. Who did it ? 

A. He did it himself 

Q,, What did you do then ? 

A. The first thing, we put the body in this bagging, and started on to 
the river with him ; carried him about, I suppose, between a half and 
three-quarters from that to the river. 

Q. At what point in the river? 

A. At the lower end of Luke Smith's farm. 

Q. What means did you take to sink the body ? 

A. Wesley Smith brought a couple of plow shares down from the 
house. 

Q. Anything else that you recollect of? 

A. No, sir; nothing that I recollect of; I ' eard them spoken of. 

Q. How were they fastened ? 

A. There was a strap put around his body ; there was holes through 
the plow shares. I suppose the two shares would weigh forty pounds. 

Q. How did you get him into deep water? 

A. He was thrown in at the bank. 

Q. Who put him in ? 
/ A. Pink Caldwell, I think. 

Q. Use means to fasten him down ? 

A. I think not ; if he did I didn't see ; I don't know whether he used 
any means to fasten him down or not. 



631 

Q. AVhat sort of a man was Charley Good ? 

A. He was a very good man, sir. He had been living with me for a year 
and a half; I have never seen anything wrong. He was my blacksmith, 
and when I wauted any work done he was always ready to do it. 

Q. What sort of a man in relation to a peaceable — what sort of a 
character did he bear in the community for a quiet man ? 

A. I thiuk a very good man. 

Q. What was the object in killing him ? 

A. I don't know. 

Q. Do you kuow his politics. 

A. Yes, sir; he was a Radical. I suppose that is what got him out of 
the way, probably. I think, but I don't know, he was a President of the 
Union League. I heard that; whether it was so or not, I don't know. 

Q. Was it your understanding that he was killed pursuant to the pur- 
poses of the Klan? 

A. Yes, sir. 

Q,. W^hat was the object of ordering you men of the Klan out to con- 
ceal the body in that way. 

A. I don't know, sir. 

Q. How many were present at that burial ? 

A. I suppose there was ten or eleven, or twelve probably. Some of 
the men that I can't name now ; in fact, some that I didn't know. 

Q. Who was master of ceremonies? 

A. Madison Smarr. 

Q. Do you know how many members there were in Madison Sraarr's 
Klan ? 

A. I thiuk, sir, there was thirty or thirty-five — probably not quite so 
many. 

Q. Do you know of any other Klans adjoining you there? 

A. Yes, sir ; Mr. Byers had a Klan. 

Q. What Byers ? 

A. I don't know his initials ; don't kuow his given name ; I think 
it is Charles Byers. 

Q. How many members in his Klan ? 

A. I don't know, sir ; probably twenty, I suppose. 

Q. Do you know any other Klan right there or. near by ? 

A. John Mitchell's. 

Q. How many members in his Klan ? 

A. He had thirty or thirty-five, probably forty. 

Q,. Do you know any other Klans ? 

A. Yes, sir ; I heard that Will Johnson had a Klan ; I only heard it. 

Q. How far off from you was that ? 

A. Twelve or fifteen miles. 



632 

Q. Now, what proportion of the white people in that portion of the 
County beh)ng to Klans ? 

A. All belong to it — nearly all — very few exceptions. 

Q. Have you heard from members of the Klan of other murders 
similar to this of Charley Good's? 

A. Klans that has done other murders ? 

Q. Yes. 

A. Yes, sir. 

Q. State what other murders you are aware of, from learning of mem- 
bers of the Klan. 

A. There was two gentlemen told me that they killed, on the 8th of 
March, I think ; at any rate, it was the time this fuss occurred by Tur- 
key Creek Bridge. 

Q. That is in the Southern portion of the County ? 

A. Yes, sir. Two men told me they shot a couple of negroes on the 
bridge down there ; they was Joe Smith and Pinck. Caldwell. 

Q. Did they tell you whom they killed there ? 

A. They said they put them up on the banisters and shot them ; and 
one fell back on the bridge, and the other fell in the creek, and they shot 
at him several times after he fell ; when he first fell, he swam to a little 
pile of trash, and they shot him there. 

Q. Who shot him ? 

A. They were both talking to me at the same time. Whether any 
more was shot, I don't know. I suppose there was a good many people 
there. They said they taken them prisoners, and they killed them there 
at the bridge. 

Q. Did they tell you whether they killed more than two at the bridge? 

A. Only two, sir. 

Q. Give their names. 

A. Sam Skafe and Eli McOollum. 

Q. Those were the two colored men that were kiUed? 

A. Yes, sir. 

Q. Any other murdersthat you know of, by members of the Klan? 

A. No, sir ; I don't know any other. 

Q. Whether you know anything about the Aleck Leach murder? 

A. Well, William Leach told me that was Mitchell's Klan that done 
tlmt — he and John Wallace both — l)ut whether they was along or not I 
don't know. 

Q. You knew those two men to be members of the Klan ? 

A. Yes, sir ; I did. 

Q,. What did they tell you about it ? 

A. They told me it was John Mitchell's Klan that killed Aleck 
Leach. That was about all they told me. 



633 

Q. Who was Aleck Leach ? 

A. Well, he was a freedmaa that lived in the country 'there. 

Q. Did you know his politics ':* 

A. I suppose he was a Radical. 

Q. What did Wallace say to you about it — as near as you recollect ? 

A. We were talking about that matter, and he just says — talking about 
Aleck Leach, you know he was gone for some time before any one knew 
anything about him — and he just says, says he: "It was Mitchell 
that d(^ue it." Who was along, or whether these men was along, I don't 
know. 

Q. Was that before or after the body was found? 

A. It was after his body was found. 

Q. Did you see the body of Aleck Leach after it was found ? 

A. No, sir ; I didn't. 

Q. Who was Chief of that County ? 

A. Major Avery, I think, sir; so it is said. 

Q. J. AV. Avery? 

A. J. W. Avery. 

Q. Who was Grand Cyclops ? 

A. Forrest— General Forrest. That was my understanding in the 
matter. 

Q. Who was the Cyclops or Chief of this State, according to your — 

A. Banks Lyle, sir; I think. 

Q. Do you know anything about the raid on Ferris ? 

A. Yes, sir. 

Q. State what you know about that raid ? 

A. Robert Erhorn and Wallace told me it was Mitchell's Klan, both 
They went there, and as they went up Erhorn said he was standing in 
the door, and commenced shooting. . , 

Q. Who— Ferris? 
* A. Ferris ; yes, sir. They went on up to the house, and there was a 
young man — I don't recollect his name— got up in the door and passed 
shots with Mr. Ferris, and couldn't get in; didn't get in the house, and 
they cut a hole into the back end ot the house; L|pppose that was for 
the purpose of shooting him, in case they could s^e him. They finally 
told the ladies that they didn't come for Mr. Ferris — they came after 
guns ; and they got sixteen seven-shooters, I think — probably srxteen- 
shooters. 

Q. Who gave them up? 

A. The ladies. 

Q. Did he tell you what real object they had in going there? 

A. He did not. 



634 

Q. Now, wliether strangers, who were not members of the order, couhl 
atteud its lueetuigs, or were aUowed to ? 

A. Not without signs, sir, tliey couldn't come in a meeting. 

Q. How were persons tested at these meetings ? 

A. They were tested by the pass- word and by certain signs. If he gave 
that sigD, I suppose he got in, (passing the right hand forward over the 
right ear,)/or by the grip. 

Q,. AVould any man be allowed to come from curiosity, or anything of 
that kind ? 

A. No, sir. 

Q. What was your understanding of the penalty for revealing any fact 
or secret of the Klan ? 

A. It was the traitor's doom, sir; death, death, death. 

Q,. When was this raiding and murdering^done — at night or daytime ? 

A. Done at night, sir. 

Q. In di^^guises, or without disguises? 

A. In disguises. 

Q,. What was the disguise? 

A. Well, I never saw but a few, and one that I saw was iioade out of a 
solid calico; some few of them ; and others was made out of this Northern 
homespun, the white ones were; and red or colored ones was solid 
calico. 

Q. How long was the gown ? 

A. They came down about that far, (below the knee;) some covered 
the boots. 

Q. Where did it rest? 

A. Over the shoulder. 

Q. What did they wear over their heads? 

A. Wore a cap or a hood, drawn clear down over their face. 

Q. What were their arms ? 

A. Pistols, generally. * 

Q,. Whether they disguised their horses ? 

A. Y&s, sir; they had their horses covered. 

Q. Whether they disguised their voices? 

A. Disguised their voices, too, sir. I never was present when they was 
talking, only the time they whipped Charley Good. They come there 
some four weeks before he was killed, and whipped him very severe ; they 
disguised their voices that night. 

Q. You were present ? 

A. Well, I was so I could see and hear; it was a nice night, and I 
looked out of the window and could hear them speak. 

Q. How did they talk ? 

A. Well, they talked in broken Irish. 



635 

Crosii Examination hij Mr. Wilson. 



Q. You belong to Madison Smarr's Klan ? 



A. Yes, sir. 

Q. And that Klan, you say, strangers are not allowed to attend with- 
out the pass-word, or sign, or grip ? Do you know what was the practice 
in ChamberB Brown's Klan ? 

A. I don't know anything about that. 

Q. If one wasn't a stranger — if he was known in the neighborhood, 
and an officer of the Klan were to bring him in with him, do you not 
think it possible he might get in tha|( way ? 

A. No, sir; it was out of order to take a man into a Klan without 
they knew tl^at he was a Ku Klux. 

Q,. That was the practice in Mr. Smarr's Klan? 

A. Yes, sir ; and I suppose it was everywhere. 

Q. But you don't know anything more, excepting as to Smarr's Klan ? 

A. It was a secret thing, and I don't suppose a man, Avithout they 
knew he was a Ku Klux, could get in any Klan. 

Q. AVould you allow no officer in the Klan to bring a man in, relying 
upon that officer that he would not bring a man in that would betray 
them ; might that not have happened ? 

A. Well, an officer would have better sense than to do it. 

Q. Might he not have done it. 

A. I think that was out of order, entirely. 

Q. That was not the practice in Smarr's Klan? 

A. No, sir. 

Q. You have never met with this young man on any raid ? 

A. No, sir; I have never been on a raid, sir; I am not personally 
acquainted vrith the man at all; still we didn't live very far apart; but I 
don't know the gentleman at all. 

Re-direct Examination. 

Q. Can members of one Itlan visit another Klan ? 
A. Yes, sir; if they was known to be members. 

TESTIMONY OF LAWSON B. DAVIS. 

Lawson B. Davis, a W'itness for the prosecution, being duly sworn, tes- 
tified as follows : 

Direct Examination by Mr. Corbin. 

Q. What is your residence ? 

A. West of Yorkville, about sixteen miles. 



636 

Q. "Whether you have been initiated as a member of the Klan ? 

A. Yes, sir ; I was admitted. 

Q. Who initiated you ? 

A. Wesley Smith, and James Parts, and a brotlier of mine ; three 
persons only. 

Q Will you please look at this constitution and by-laws, and see 
whether you recognize it as the constitution and bylaw- of thelvu Klux 
Klan. What was your position in the order. 

A. At the only one I have attended, I was appointed Secretary of the 
order. 

Q. Examine that paper if you ;^ease, [witness examines obligation, 
constitution and by-laws of the Klan.] 

A, I recognize it as the same, with the exception of the second clause 
here ; my memory more forcibly strikes me that where it speaks of oppos- 
ing Radicalism, the assertions were the Thirteenth, Fourteenth and Fif- 
teenth Amendments ; the Fourteenth, I am satisfied. 

Q,. What do you say, then, were the general objects of the order ? 

A. The object of the order was certainly aimed at the Ilepublican 
party. 

Q,. And what were the means to be adopted ? 

A. The only meeting that I attended, the propositions brrmght before 
the Klan were that persons who were prominently connected, colored and 
wliite, as leaders in the Republican party, members of the Union League, 
or officers of the League, were to be visited and told that they must dis- 
continue their connection with the party. That was the first visit. The 
second visit these persons 'were to be whipped, in case they didn't discon- 
tinue their connection on the second visit. The third was a request to 
leave the countr}?-. In case they refused to leave the country, then they 
were to meet the penalty of death if they continued in their course. • 

Q. Do you know that the purposes of the order were carried out in 
this manner. 

A. Yes, sir ; in one instance, in my knowledge. 

Q. What instance ? 

A. The Charley Good case. 

Q. State that case briefly ? 

A. He was whipped a while before he was killed, I think about the 
middle of January, and he came over to my house and showed me his 
wounds. 

Q,. He was whipped badly ? 

A. Yes, sir ; badly whipped. He said then that he was whip^jed for 
his Radical principles. He saj's the)'' had nothing else against him but 
his Republican principles. He then said to me, that it didn't change his 
principle, that he would vote the Republican ticket again if the ojjpor- 



637 

tunity was ever presented to him. I told him I thought that assertion 
had better be kept to himself, but he made the assertion in the presence 
of two or three colored men. 

Q. And you warned him that that was — 

A. Drtugerous — I did. A sliort while after that he was killed. The 
parties who done the murder, were William Smith, Wesley Smith, iu 
eonnectiou with William Vv'hite and Leander Spencer. These men, 
Spencer and White, didn't tell rae that they assisted in the murder, but 
William Smith and Wesley Smith both told me that they took part in 
it. He was killed on Wednesday night. That day he worked on Roland 
Thompson's plantation, and this party had watched him that day and 
way-laid him in the road as he went home, some three-quarters of a mile 
distant from his home. They stopped him with a gun ; sliot him, and 
then finished him. Wesley Smith says, he was hit with the gun, but 
finished — I think the statement of Wesley Smith is, that he was finished 
with a rock. And William Smith told me that after he was shot, Wes- 
ley Smith left ; but William Smith says, when I left him he was finished. 

Q. Were William and Wesley both present when this was told to you? 

A. Yes, sir ; they came to my house together. It occurred in connec- 
tion with the body of Charley Good ; that was the business on which 
they were on then — they were summoning men to assist in concealing the 
body. 

Q. What day was this? 

A. This was on Friday. 

Q. And he was killed on — 

A. Wednesday night ; and Wesley Smith said, the intention was to 
get ail the white men in the commuuity to assist in removing the body ; 
he said he didn't want anybody left behind, so that no information could 
leak out ia reference to Good. I went then — about 8 o'clock, when I 
left ray home, or nine — up to Mr. Howell's, and found Mr. Howell. He 
told me he had received the same orders from Wesley Smith. He said 
it didn't accord with his feelings — he didn't wish to see the body ; and 
that was ray feeling, and we staid until the hour had passed. 

Q. What was the hour named ? 

A. Ten o'clock. We went then to where they said the body was lying. 
On arriving, we found there was no person there at all ; but we stopped, 
and in a short while the party came on back and stopped where we were 
and talked ; I talked with four or five of the men. 

Q. Who were they ? 

A. Mr. Berry — Tliomas L. Berry — Wesley Smith, William Smith and 
Pinckney Caldwell. , 

Q. State what they said ? 

A, Mr. Berry said I had escaped a scouring — that he was very heavy. 



638 

Pinckney Caldwell said that he was hard to smk, but he had sunk him, 
for, he said : " I jumped in on the body in the river, and saw that he was 
sunk, and fastened the body, as well as I could fasten hira, with a stake." 
Wesley Smith said he had put cotton bagging around the body, fastened 
with some chains and some plow-shares. 

Q. Did you know Charley Good ? 

A. Yes, sir; I have known him sixteen months, perhaps. 

Q,. What kind of a man was he ? 

A. I don't know anything particular against Charley, more than his 
principles. He was rather defiant in his course, however — he was deter- 
mined — didn't seem to care who knew his political principles. 

Q. Was he an insolent or offensive man otherwise? 

A. I have heard that laid to him, though he didn't appear so to me. 

Q. Did you ever see anything yourself? 

A. I never did. 

Q. Do you know whether he was a preacher, besides ? 

A. I didn't know that he was. 

Q. Was he a man of influence among his color ? 

A. In his own neighborhood I considered that he had some influence; 
how far it extended I don't know. 

Q. Did you ever know of such an occurrence as this — of a person who 
was not a member of the Ku Klux order being admitted to attend one 
meeting, and going away Avithout being a member ? 

A. It was never done in that way at their meetings ; never any person 
present only those sworn in. 

Q. What would you say of such a transaction as that — was it ac- 
cording to the rules of the order ? 

A. It was not according to the rules of the Klan where I was admit- 
ted. 

Q. Did you ever hear of it being done anywhere ? 

A. No, sir ; I didn't. 

Cross-examination waived. 

TESTIMONY OF KIRKLAND L. GUNN. 

Kirkland L. Gunn, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corbin. 

Q. Are you a resident of York County? 

A. I ain, sir. 

Q. Whether you have been a member of the Ku Klux organization ? 

A. I was a member. 



639 

Q. When were yon initiated, and where ? 

A. January, '71, near Wesley Smith's house, in York County. 

Q. What did you say were the purposes of the order — political or 
not? 

A. They were political, sir. 

Q. And in the interests of what party, and against what party ? 

A. Against the Radical party ; the aim of the Ku Klux was against 
the Radical party. 

Q. How were their principles of opposition to the Radical party to be 
carried out? 

A. By killing and whipping, sir. 

Q. Killing and whipping whom ? 

A. Killing the men who wei'e in office, whipping the voters, so as to 
intimidate them, to keep them from voting for men to put them into 
Radical offices. 

Q. You have attended meetings of the Klan? 

A. Only two, sir. Yes, I have attended meetings. 

Q. State whether members of the Klan were to recognize each other 
by signs and pass-words ? 

A. They were to recognize each other by signs and pass-words. 

Q. Whether the meetings were secret or public ? 

A. Always secret, sir, 

Q. Whether jDersons, not members of the order, were ever allowed to 
attend meetings ? 

A. Never were allowed to attend meetings, unless they had been 
initiated previous to that time. 

Q. Whether the principles of the order, as announced in the constitu- 
tion and by-laws, and universally understood, would permit anybody to 
be present except members ? 

A. None but sworn members, sir. 

Q. What was the penalty of revealing any secret or anything done by 
the order? 

A. Death. 

Q. Was it admissible for members of the Klan to tell each other what 
had occurred ? 

A. It was owing to the nature of the case. 

Q. Would it be considered a revelation of the secrets of the Klan to 
tell to anybody who was not a member? 

A. It would. 

Q. Did you ever know of any person being allowed to attend meet- 
ings of the order who was not there for the purpose of being iiiitiated, 
or because he was a member of the order ? 



' , 640 

A. Never knew of any one, except members, to attend meetings in my 
life. 

Q, Ever hear of such a thing ? 

A. Never heard of it, sir, from the fact that such a thing never 
occurred. 

Q. What Klans were you acquainted with in York County ? 

A. John Mitchell's and Charley Byers'. 

Q. What Klan were you first a member of? 

A. John Mitchell's. 

Q. Were you afterwards a member of any other Klan ? 

A. I was next a member of Bob. Burris' Klan. 

Q. Whether you could visit the different Klans, and recognize different 
members of the order in different parts of the country ? 

A. I could, sir. 

Q. Could you do it without giving the signs and pass-words? 

A. No, sir; it wouldn't be permitted, to enter without giving a sign or 
pass-word. 

Q,. Could you approach a meeting of the Klan at night without giving 
signs and pass- words ? , 

A. Not without giving the pass-words, sir. 

Q. What was the custom of meeting Klans at night? how did they 
recognize each other, or members meet each other ? 

A. By the pass-word. 

Cross Examination by Mr. Wilson. 

Q. Did you ever attend a meeting of Chambers Brown's Klan ? 

A. Never did, sir. 

Q. Has your attention ever been particularly called to whether any 
officer or member of the Klan could bring in a friend without anything 
more than his endorsement? 

A. Never heard of sucli a thing. 

Q. Don't remember any case of that kind? 

A. No, sir. 

Q,. The only Klans whose meetings you have attended are Mitchell's, 
Byers' and Burris' ? 

A. Yes, sir. 

Court adjourned until the 28th, at 11 A. M. 



641 

Columbia, December 28, 1871. 

TESTIMOKY OF CHARLKS W. FOSTEK, 

Charles W. Foster, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct E.acmlnation by Mr. Corhin.- 

I reside in York County, and have been 9, member of the Ku Klux 
organization in that County. The piirpof.-e of the order, as I understood, 
was to put down Radicalism, by whipping and killing out the mem- 
bers of the Radical j)arty ; the Klati is bound by oath to secresy ; no 
one is allowed to enter the order unless they are members ; the pen- 
alty of divulging any of the secrets of the organization is death! death!! 
death ! ! ! according to the constitution ; persons who were not members 
of the order were not allowed to attend its meetings, and there were 
sentinels, always, at their meetings, to keep away those who were not 
mendjers. 

Cross -Ex ami nation by Mr. Wilson. 

I belong to Captain J. W. Mitchell's Klan ; I never was present at a 
meeting of Brown's Klan. 

He-Direct Examination. 

I know Chambers Brown ; I have geen him frequently ; I have seen 
him on raids ; I have seen hitn on the Bill Wilson raid, when seven 
or eight colored people were whipped ; Johnson was in command of 
that raid ; I was on the raid myself; I do not know of any difference in 
regard to the usages of the Klaus and their object ; Brown's Klan 
and Mitchell's Klan were the same in their purposes and objects, and the 
members of the different Klaus regarded themselves as brethren. 

C(junsel for the prosecution offered in evidence the constitution and by- 
laws of the Ku Klux organization, and z'ested, 

TESTIMONY OF DANIEL m'cLURE. 

. Daniel McCiure, a witness for the defens', being duly sworn, testified 
as follows: 

Direct Examination by Mr. Wilson. 

I live in l^n-k County with Mr. John Millar — that gentlemen [pointing 
to the prisoner]. I went to live with him last January ; the Kii Klux 
visited .us while I lived with him ; they came twice to Mr. Millar's house ; 
41 



642 

that was the third week iu March ; I lived there at the time ; they came 
there iu the night ; they made a noise and waked us up, and called for 
Mr. John Millar ; they also called for the captain of the road ; that was 
myself; I had been appointed captain of the road 'by the influence of 
Mr. Millar ; there were *o many men appointed to work on the roads, 
luid I had the overseeing of them ; when the Ku Klux came to the house, 
liLs mother said there was no body there but an old woman, and for God's 
sake'ihey were not to scare her; and Mr. Millar went into a room and hid 
whea we heard them ; I am not sure that the men wei'e disguised ; the 
mooa was shining and the men rode on white horses ; I don't think the 
horses were white, but they were covered with something white ; after 
they left us they went up the road and inquired for Alex. Wallace, Mr. 
Kell, Mr. Black ; old Black is a squire, and used to marry colored peo- 
ple; I think he was a Radical, and so was Mr. Kell ; I knew there were 
some guns in the organization that were left Avith Mr. Millar, and I heard 
of some at Mr. Brown's; I knew my brother left his gun with Mr. Mil- 
lar and another colored man by the name of Brook Burris ; the Ku 
Klux came on' my brother because he was a class leader in the church ; 
he and I and Mr. Millar were all raised together, and the guns were 
brought there to prevent the Ku Klux from getting them and breaking 
them to pieces ; Mr. Millar took care of them ; I don't think Mr. Millar 
was in favor of the Ku Klux organization ; I know he told me he was 
scared of them, and I thought by this that he wasn't in fovor of them ; 
I don't think Mr. Millar had a pistol or a Ku^ Klux gown ; Mr. Millar 
was regarded by the colored people in that neighborhood as a friend to 
the coioi-ed people, and a man of kindness and fairness towards them. 

Cross-Examination hy Mr. Corbin. 

I knew Chambers Brown ; I don't know anything against him, I only 
just know him ; if Mr. Millar had had a pistol, I should most likely have 
known it; I knew all the things in the house that he had ; I knew he 
had a gun ; he said he found it, but he didn't tell me where ; I don't 
know that any guns were taken on the Jim Williams raid, and I don't 
know of Mr. Millar getting a gun at that lime. 

Re-Dived Examination. 

The gun was kept in the cooking kitchen where I staid. 

TESTIMONY OF EDWARD ROSS, 

Edward Ross, a witness for the defense, being duly svrorn, testified as 
follows : ' .. 



643 

Direct Examination by Mr. Wilson. 

I live in York County, on Mr. John Millar's plantation ; I have been 
in Mr. Millar's employ for two years ; I don't know that Mr. Millar ever 
interfered in any way with the voting of colored people ; I voted the 
Radical ticket, and Mr. Millar knew it, and never tried to induce me not 
to do it; I don't think Mr. Millar voted in any way ; I don't know what 
his reason was, but the day I went to vote I asked hira if he was going, 
and he said he was not, but if he Avas he did not know but he would vote 
the Radical ticket ; that was in the fall election of 1870; I told him I 
had never voted anything else but the Radical ticket, and expected to do 
so again ; Mr. Millar's general reputation among the colored people for 
fairness and kindness, as far as I knew, was very good ; I never heard any 
harm of hira. As to any guns being kepfat Mr. Millar's, I heard a col- 
ored man say that Mr. Millar kept his gun, and that was to prevent the 
Ku Klux from getting it. In the spring, Mr. Millar talked as though he 
was opposed to the Ku Klux organization. 

Cross Examination by Mr. Corbin. 

I never went out with the Ku Klux, but I have laid out all night, as 
other people in the settlement did, for the colored people there who had 
voted the Radical ticket were being whipped and killed, and I was very 
much frightened about that. I don't think it w^as generally known who 
were members of tlie Ku Klux Klan and who were not. 

TESriBIONY OF DANIEL CARROLL. 

Daniel Carroll, a witness for the defense, being duly ^worn, testified as 
follows: 

Direct Examination by Mr. Wilson. 

I know Mr. John Millar; I lived about two miles away from hira ; I 
have known him for the last fifteen years ; I think he was in fiivor of the 
Radical party; he had a great many hands to work for him, and it was 
necessary he should favor the Radical party or his hands would have run 
off; I judge what his politics were from his having colored hands in his 
employ; I think he had kindly feelings to>vards the Radical party ; I 
know of Mr. Millar's being present at the last meeting of Sharon Church; 
I was there with him, and his object was to find out the purposes of the 
organization. 

[Testimony objected to by the prosecution.] 

I know my object in going there was to save my own bacon and my 
hands' too, and I think Mr. Millar went there to save his hands ; I have 



644 

heard him say he went there to save himself aud his colored hands that 
were working under his control ; I knew^ Mr. Millar was opj)osed to the 
Ku Klux organization. 

Cross- Examination by Mr. Corhin. 

I was opposed to the organization, though I attended one of its meet- 
ings ; I was not present at the Jim AVilliams raid, aud I was not sworn 
in ; I was obliged to join the organization ; I voted the Republican ticket, 
and all the hands I had also voted the Republican ticket ; I thought it 
better to join the organization ; they had whipped and hunted a great 
many people, and they were putting cards in the paj)er that they were not 
Radicals, and it was to prevent more mischief being done that I joined 
the organization ; I had been a soldier in the Confederate service, and I 
knew how to fight, having tried it for four yeai*s, and I can't say but that 
I was afraid of the Ku Klux organization, and that was the reason why 
I joined them ; I did not associate with them at all; I admit that I joined 
the society and took the oath, but it was to protect myself and my colored 
hands. Whether Mr. Millar joined the organization without taking the 
oath, I do not know, and I do not, of my own knowledge, know anybody 
that did. 

Both parties rested. 

ARGUMENT OF MR. WILSON. 

May it please the Court and Gentlemen of the Jury : 

My duty, as the attorney for the prisoner, requires that I should present 
his case in accordance with the real position that he occupies, and in the light 
of the evidence which he has produced before you. And from that stand- 
point I am satisfied that he was a Radical ; that he sympathized with 
the Radical party ; that he never contemplated or desired to join in any 
combitiation whatever to prevent the colored citizens from voting in any 
election. That his true motive, in being present at the Sharon meeting- 
house, on the first of last May, and, on another occasion, about a week 
after, was simply as a witness upon the stand, to protect himself and to 
protect the colored men in his employment. The evidence shows that he 
went there, not as a conspirator against the rights of the colored people, 
but to protect the colored people and himself. I submit to you, in per- 
fect frankness and candor, as the truth of this case, that the prisoner 
was not only not a Ku Klux — that he was not engaged in this conspiracy — 
but that he was opposed to it, and that he was a Republican, and a sym- 
pathizer with the Republican party. And I will leave you, when I get 
through, to look over the testimony and see whether that is not, on your 
oaths, the truth of this case. 



645 

Much has Been offered, in the way of testimony, to show what was the 
object of this Ku Klux conspiracy; what has been its plans ; and what 
were the acts committed iu carrying out its object. It will be contended 
that it was a conspiracy to prevent colored people from voting in Octo- 
ber, 1872; and that each member of that conspiracy is responsible for 
the acts of the conspiracy ; that, because the prisoner was present on 
two occasions at Sharon meeting house, therefore, he was a member of 
the Ku Klux conspiracy; and, therefore, you ought to find him guilty. 
That will be the line of argument pursued by the counsel who is to reply 
to me. Gentlemen, it is not the duty of jurors to listen only to the case 
as presented by the counsel for the Government. They, of course, have 
their duties to perform — and you have yours. Your duty requires you 
to listen to both sides, to form your judgment upon the evidence in the 
whole case, and not to decide this case as if it had been only proven that 
John Millar was present at a meeting of the Klan on one or two occa- 
sions. For there is further evidence in the case. Had the evidence 
stopped there — had there been no witnesses to prove that he was there 
for a legitimate purpose — the counsel might, with great force and justice, 
say that he joined in this general conspiracy. But when witnesses come 
upon the stand, sworn to tell the whole truth, and when the jury go into 
that box, they are to decide by the whole evidence in the case. Now, 
the question before you is, simply, not whether Mr. Millar was present 
on these two occasions, but ivhy was he there ? What did he go there 
for ? 

What is Mr. John Millar indicted for ? There is but one charge 
against him. The grand jury have ignored and thrown out the other 
charges that the Government counsel had placed in the indictment. The 
only count on which they have found a true bill is, did he conspire, with 
divers other persons with intent to violate the first Section of the Act en- 
titled " An Act to enforce the rights of citizens to vote," etc., approved 
JMay 31, 1870 ? Did he conspire with intent to prevent colored people 
from voting in October, 1872? 

The first question for you to determine is whether his presence at Sha- 
ron Church, upon those two occasions, proves positively that he was con- 
spiring to violate the first Section of that Act ; for that is all he is tried 
for. Is it only possible for him to be there for that purpose, and no 
other? Is it possible that that shows his whole intent, and that he had 
no other? His intention constitutes the essence of the thing. When a 
man is tried for crime his intention is the essential point. The language 
of the indictment is that he intended to violate the first Section. You 
have to decide from the evidence what his intent was. He was not him- 
self allowed to go upon that stand and swear what his intent was, 
but iMr. Daniel Carroll, who went with him, tells you what 



646 

liis intention was ; tells yon that he was a Republican, and voted 
the Republican ticket. He tells you that he went to those meetings to 
save himself from the violence of the Ku Klux organization, and to pro- 
tect the colored people in his employ. 

The witness says that he talked this matter over with Mr. Millar, who 
told him that that was his object. This is the testimony of the man who 
went to that meeting with Mr. Millar. Mr. Millar is shown to have been 
afraid of the Ku Klux. Why did they visit him at night, during the 
third week of March, in that same spring ? They went to his house at 
night in disguise. They called for him, and the captain of the road, 
Daniel McClure, a colored man in hi? employ. ■ Does not that look ,as 
though the Ku Klux intended to visit some punishment upon Mr. Millar? 
Does it not show that they were both alarmed and fearful of this organi- 
zation. And you will remember that they enquired for three men, all of 
whom were known to be members of the Radical party. It shows that 
they placed Mr. Millar, and the colored man, Dan McClure, all in the 
same list; and the Ku Klux raid was upon the whole of them. Is not 
that a circumstance to show what Mr. JVJillar's intention was in going to 
Sharon Church ? 

Again, Dan McClure was the captain or overseer of the road, and he 
was appointed by Mr. Millar's influence. It appears, further, that the 
guns belonging to the colored people were in Mr. Millar's charge. How 
did they come there ? They were placed there by the colored people, to 
prevent the Ku Klux from getting them and breaking them up. Does 
that look as if he was conspiring against the rights of the colored people? 
Then, again, his reputation in that County for kindness and fair dealing 
towards the colored people was universally good ; he Avas regarded by the 
colored people as their fi-iend ; that was his undisputed rejiutation. And 
how-does he act ? When Ross, the colored man, speaks to him about go- 
ing to the election to vote, he does not attempt to prevent or dissuade him 
from voting the Radical ticket. Does he ' not say that if he voted, he 
would vote the Radical ticket? This is not the conduct of a member of 
a conspiracy, whose object was to prevent colored people from voting. 
The Government may reply to this, that he was present at two meetings 
of the organization, and that, therefore, he is guilty. I deny it ; and I 
deny that that is the law. The true question for you to determine is, 
what was his intent in being there? Was he a part of this conspiracy? 
Was he aiding in it? Was he favoring it ? Did he not rather go there 
solely for the purpose of protecting himself, and the hands in his em- 
ploy ? 

Now, the mere fact of Mr. Millar being there proves nothing. He 
might have been there as' a detective, on the part of the Government. 
His presence there would then not have been criminal, because his busi- 



647 

ness would not have been criminal, and his intent would not have been 
to violate the first Section of that Act. Now, I contcud that Mr. Millar 
might have been there simply as a detective, with the simple object of 
protecting himself and the colored people in his empL>y. And there is 
much to confirm that. It will be your duty, gentlemen of the jnry, to 
examine the whole evidence in this case. I know that I am addressing 
a jury, who, with the exception of the foreman, is of a different color 
from the prisoner ; but, in the name of all that is just, in the name of 
all that is due to humanity, in the name of that consciousness that we 
have of thepresence of Him who wituessess the actions of every twbunal 
that claims to administer justice and enforce the law, based upon reason, 
equity and humanity, I ask you to dismiss all prejudices about race and 
color. We are creatures of the same God ; we ax*e all amenable to Hmx 
and to His laws ; and I ask you now, upon your oaths, is there any inci- 
dent, in this whole case, to confirm the position that IMr. Millar was not 
there simply with the. intention of protecting himself and the colored 
men in his employ ? Did he ever have a Ku Klux gown ? No. Did 
he ever have a pistol? No. Did he ever go upon a raid ? No. If he 
was a member of the organization, and an active member, ho was bound 
by the constitution to have a pistol and a gown ; to g<t upon its raids, and 
obey its orders. Is there any particle of proof that he did any of these 
things? The very witnesses put up by the Government tell you dis- 
tinctly that they never saw him on a raid, or in disguise, or with a pistol 
or a signal instrument. All that they, do is simply to prove his presence 
at a meeting, on two occasions, at Sharon Church. 

[Mr. Wilson here reviewed the testimony of the Government witnesses, 
Elias Ramsay, John Ramsay and Charles W. Foster, whom, he con- 
tended, merely proved the presence of Mr. Millar at two meetings of the 
Ku Klux organization, and did not prove thai: he had been swoi'n a 
member of the order, or had even participated in any way in carrying 
out the purposes of the organization.] 

The first question (Mr. Wilson continued) for the jury to decide is 
whether there was any criminal intent, on the part of ]Mr. Millar, in 
going to those meetings of the Klan, Do you not feel, gentlemen, per- 
fectly convinced that there was no criminal intent, or any intent to vio- 
late the law under which he is indicted ? And, if he went there simply 
to protect himself and his colored hands, what, I ask, has he to do with 
this long^list of acts of violence, respecting which so much testimony has 
been offered on the part of the -Government? Admitting that there 
have been acts of violence, he has nothing to do with them, and he is 
not guilty, according to the evidence, of any conspiracy to commit those 
acts. 

And all this, gentlemen, should not be allowed to influence your minds 



648 

against my client, for he is not responsible for acts with which he has 
nothing to do. jMr. ISlillar was at those meetings simply to disarm the 
hostility of the Ku Klux against him, and to ascertain, if possible, if 
they intended to harm him or the negroes in his employ. Why should 
all this testimony be offered iu reference to the purposes of the organiza- 
tion ? I suppose it is simply with the view of showing that there was a 
conspiracy to prevent the colored men from Voting iu 1872. Supposing 
it were so ; I contend this had nothing to do with my client if he was not 
a meriiber of that conspiracy, and did not join it with a guilty intent. If he 
went to that meeting with au innocent intent, and if he did not go there 
to i^romote this conspiracy, but to protect himself, then he ought not to" 
be punished. 

If you have any doubt as to his intention in going there, you certainly 
ought to give the prisoner the benefit of that doubt. If you cannot, the 
Court must pronounce sentence. His fate, therefore, rests entirely upon 
you. He is at your mercy. I cannot see why he should be offered 
as a victim upon the altar. It certainly would be no sacrifice to jus- 
tice. Suppose you convict him; suppose you entail an imprison u;ent 
upon him, which one of you, gentlemen, can point to a single word 
that has ever been uttered by this prisoner ; which one of you can put 
your finger upon a single act that he has committed, that would justify 
you in punishing him, and that would satisfy you that he should be 
subjected to. a penalty of that sort? You are to look to the entire evi- 
dence, gentlemen ; because, if you convict, the Court must punish. His 
fate is in your hands, and I again ask y<)u to look over the whole of the 
testimony and answer the question. Are you not satisfied in your 
hearts that this man was a Republican in his sympathies and his acts ; 
that he was simply taking care of himself and of the negro hands in his 
employ, and that he had cause to fear the Ku Klux ; that he was 
really opposed to the organization ; and that his presence at those two 
meetings was simply an act of precaution and self-defense ? Are you 
not satisfied that that was his intent, and not to violate the first Section 
of the Act under which he is indicted ? I ask you to decide these 
questions after looking over all the evidence, and not simply confine 
yourself to the one point proved by the Government, and the one posi- 
tion taken by the Government — that he was present on two occasions 
when this Ku Klux Klan met. 

I ask you, gentlemen, in conclusion, to dismiss from your nwnd any 
prejudice, if any should exist, of race aad color, and to do justice to 
this man. The passions, the excitement, the strifes and prejudices of 
this fleeting life are soon ended, and none of us should forget that we 
must account hereafter for all our actions here. 



649 

ARGUMENT BY ME. CORBIN. 

The prisoner at the bar is charged, that he, with others of York 
County, did imlawfully conspire, with intent to violate the first Section 
of an Act to enforce the rights of citizens of the United States, to vote 
in the several States of this Union, May 31st, 1870. 

[Mr. Corbin here read the indictment.] We first notice, gentlemen, 
tluxt he is charged Avith being in a conspiracy for the purposes indicated 
in that Act. The Court will tell you that a conspiracy consists in the 
ao'reemeut, the entering into a combination to do an unlawful thing ; it 
docs not consist in the doing, but simply in the agreement to do it. 
This definition has been heard, over and again, in this Court, and it is a 
proposition that does not admit of dispute. If you read the indictment 
carefully, you will see, it only charges him with conspiring to do the 
unlawful thing. That is the offense, nothing more and nothing less. 

Such combination and such conspiracies are prohibited by law ; and 
the only question, gentlemen, for you to enquire about in this case is, did 
this defendant enter into such an agreement and such a conspiracy. 

How do we show, gentlemen, that he is a conspirator, and that he en- 
tered upon this conspiracy ? In the first place, we put the members of 
his own Klan upon the stand, who swear that he attended the meetings 
of the Klan ; that he took part like the rest of the members, and they 
do not attempt to deny it. Here, gentlemen, you have a secret, ' oath- 
bound society, or organization, that does not permit any stranger to be 
present at its meetings or to know its secrets, any more than it permits 
any of its members to tell the secrets forbidden, under penalty of death. 
The rules of the organization'are all alike, and all the Klans declare that 
any man who reveals any act of the order shall suffer death at the 
hands of his brethren. ISTow, gentlemen, this is the testimony of all the 
witnesses who have been put upon the stand. Even the witness for the 
defense, (Mr. Carroll) 'says : " I could not go into the Klan without be- 
ing a member of it, and I don't know anybody that could." 

There cannot be, gentlemen, a particle of doubt upon that question. 
When we see a man filling an office, exercising its functions, we say at 
once that he is an oflScer ; and, if he acts as an officer, his acts are valid, 
so far as the public are concerned, though he may not, in reality, be an 
officer at all. Mr. Ramsey, Mr. Davis, Mr. Gunn, Mr. Foster and other 
members of the Klan, all testify that no one could attend meetings who 
was not a member of the order ; and Mr. Kirkpatrick says: " I not only 
saw him there at one meeting, but I saw him there at two meetings." 
Can there be any doubt of his being a recognized member of the Klan, in 
full fellowship with them, and in full possession of all their secrets, with 
a full knowledge of their purposes, and fully advised of ail that they 



650 

intended to do, and all that they were doing? So this'defendant holds him- 
self out to that Klan as a member. Do you suppose, for one moment, 
that that baud of conspirators, who had been present at murders, who 
had gone on midnight raids, Avho had again and again whipped colored 
people in York County — do you suppose they would have permitted this 
man to be present if he had not been a member of the organization, and 
if he was not knows to be a member ? 

Do you suppose, gentlemen, that you or I could have been present at 
the meetings of that Klan ? We might have done it, gentlemen, but we 
could never have come back here again ! And. this is true of ths }>ji- 
soner, John Millar; if he had, been admitted to the meetings of that 
Klan, and it had been ascertained afterwards by anybody that he Avas 
not a member, would they not have "gone for him," in the expressive 
language of that County ? I tell you they would ; and there would have 
been no John Millar to try here to-day. The witnesses, Ramsay and 
Ferguson, also saw him at the meetings of the Klan. Thus, four men 
of that Klan, who were present, saw him ; two of them saw him there, at 
different meetings ; others saw him at one. Did he not hold himself out 
to the Klan as a member of that organization ? He did, and there is no 
denying the fact. Why do they not produce some witness to testify that 
they knew he was not a member ? — that he was allowed to go there as a 
sort of honorary member, or visitor? Because, gentlemen, if it was not 
so, he could prove it. There are members of the Klan in this Court, 
and there is no objection to their going upon the stand to swear to that 
fact, if it be a fact. Why do they not do it ? Because it is not true. 
They know that John Millar could never have gone there had he not 
been known to be a member of the Ku Klux Klan. He was present at 
their meeting when officers of the Klan were elected' — a monarch, a turk 
and a committee. Witnesses testify that, though they did not see him 
vote, that when the members separated into lines to vote for the respective 
candidates, they did not see him stand on one side and not vote. Well, 
gqntlemen, he could not" have taken part in these important operations of 
the Klan, had he not have been a "member. 

It was suggested, on the other side, that he might have been there as 
a Government spy, to find out what the Klan was doing. This sugges- 
tion is not serious. But if so, he could have told me, or some represen- 
tative of the Government, that we might have prosecuted so infamous a 
conspiracy. Such a suppos;tion is not for a moment to be entertained. 
If he had been there by accident; if he was there not to join in its pro- 
ceedings, there would be some evidence of it. The burden of proof is 
uponjiim. When I see anybody operating with a band of murderers, 
operating with men guilty of all the crimes in the catalogue, meeting 
with them night after night, what is the inevitable presumption ? Why, 



651 

that he is one of them ; that he beh^ngs to them ; that he co-opei'iates 
with them ; that his sympathies are with them. No truer saying, gentle- 
men, ever passed into a proverb than that "A man is known by the com- 
jiany he keeps." This was the kind of company that John Miliar kept ; 
this is the kind of association John Millar selected. 

Then, gervtlemen, the witnesses tell you that he was present at meet- 
ing when the Klan went upon a raid; but he, having no disguise, went 
home. Was he not in the secrets of the order? What did they kill 
Charlie Good for? For the simple reason that he knew some of them 
who had whipped him. This shows what the Klan will do to any one 
Avho knows the purposes of the order. They will kill him ; and this is 
what they would have done to Millar had he not been a member of the 
order. 

It seems to me, gentlemen, that the testimony is so overwhelming that 
there cannot exist any doubt in your minds; and, therefore, guilty of 
the conspiracy with which he stands charged. 

After a review of all the testimony in the case, Mr. Corbiu con- 
cluded : 

•Gentlemen, I leave the case with you. I feel that further argument, 
or further reference to the testimony, is unnecessary. If you feel, gen- 
tlemen, as I feel when I have heard these awful tales of murder, rape, 
ai*?on, that you can never forget them, and can never banish them from 
your minds — either in your hours of sleep or in your hours of wakeful- 
ness — I know you will thank me not to repeat them. The horrible tales 
that have been told us from that stand, in carrying out the purposes of 
that organization, are reality far too terrtble either to be forgiven or for- 
gotten. 

The Court then charged the jury more briefly, but to the same effect as 
in the preceding trials. 

The jury then retired ; and, on their return, rendered a verdict of 
guilty. 

THE SENTENCE. 

Q. (by Judge Bond.) What have you to say in mitigation of your 
punishment? 

A. I have not anything to say, only I say, the first thing I am going 
to state to you, I am going to tell you how I came to be at the Sharon 
meeting house. A cousin came to my house, and told me to come and 
go along w'ith him. And when we went there, he told me there was 
something powerful to be done, and I asked him what it was. He said 
there had been a man divulging some secrets, and they was talking about 
shooting him. And I told ium I didn't want to go in any such a con- 



652 

* 

cern as that. Pie said corae and go along ; and he told me, if they 
asked "Who comes there?" to , say "A friend." Well, we went, and 
they never said anything like that at all. I hitched my hor.se, and went 
in and spoke to them, and never let on but what I was a member of the 
Klan. They said that Andy Kir.kpatrick had been telling some tales to 
Dan Carroll, and they commenced talking about shooting him ; and 
Squire Sam Brown, I think, was there, and he got up, and so did I, and 
told them that such a thing as that oughtn't to do any such a thing, be- 
•cause there was Andy, and no person to depend on but his old mother 
for a living ; and they concluded that it wouldn't do; that may be Dan 
Carroll was telling a lie. When I saw Dan Carroll, I told him : " You 
best get in the order, for they said about your being a Radical, anyhow, 
and it is best for you to go and get into that thing ;" and I told him it 
M'ould be best to know something about it, for we wouldn't be obliged to 
go on a raid, and they wouldn't hurt our hands. When I went there, 
the next night, it was in the session house, and I took him ; and when I 
went in, I told them about having Dan Carroll with me, and they com- 
menced cursing, and said I oughtn't to have brought him there ; and I 
said : "Dan is a good fellow, and there is no danger of him telling any- 
thing." And he went in the house, and they knelt him down and swore 
him in ; but I never was swore in, and I told Major Merrill them very 
things the first time I ever went up to him. 

Q. What do you mean by joining to' keep them fromi ruining your 
hands ? 

A. Well, I didn't mean I joined it ; I told him just what I tell you ; 
but I didn't join it at all. # 

Q. How did they run your hands off? 

A. • They had been to my house once before that, and there was a col- 
ored man with me — a captain on the road ; and they came there once ; 
and they came there and hollared for me and him, and we slipped out 
in another room ; and it wasn't a week before they came there again — 
but he never told that on the stand. 

Q. Run what hands off? 

A. The hands that was working with me. 

Q. AVhat did they want to run them away for ? 

A. I don't know anything aliout what the object was ; I reckon because 
they had been voting the Radical ticket. They went to all the white 
people that were Radicals and done sometliing, I always was opposed 
to that thing, but I know'd they didn't believe rne. There was a mighty 
heap that got away, and I knew when I didn't do anything I didn't 
want to go away, \ 

Q. Why didn't you inform on these people? 

A. Who would you went to in that country? There waan't a man 



653 

what was Radical but had his card in the paper. iSTow, who would I 
went to? • 

Q,. Who is the Judge in that County ? 

A, I forget his name — but he wasn't up there. Thomas is the Judge 
up there. 

Q. Why didn't you go to him ? 

A. What was the reason why I didn't go to him ? He might have 
been there, but I never had any dealings in Court at all. 

Q. Has nobody in that County been punished for these things? 

A. Not as I know of. 

Q. Why didn't you go to some Trial Justice ? 

A. There Avas no Trial Justice. 

Q. How many of the white people belong to this thing ? 

A. Every one that I have heard say anything of it was obliged to 
belong to it. 

Q. When you met at Sharon, did you meet in the ciiurch? 

A. The first time we met in the yard, and the next in the session 
house. 

Q. What is the denomination of the church ? 

A. It is Seceders. 

The Court. The Court is of opinion that you are the least guilty of 
the parties brought here. They will sentence you to a fine of S^O, and 
imprisonment for three months. 



Part VII. 



THE CASE OF EDWARD T. AVERY.. 



Columbia, December 29, 1871. 

Edward T. Avery was indicted with several others upon four counts ; 
one charging the general conspiracy, and the others charging an iuter- 
ierence with one Samuel Sturgis, a colored man, in the exercise of the 
suffrage. When the case was called, counsel for defense informed the 
Court that they would sever in their challenges ; and the jDrosecuting offi- 
cers, therefore, concluded to try each defendant separately, and Avery 
first. 

A jury was empannelled, and the prisoner, upon arraignment, pleaded 
not guilty. 

The following persons composed the jury : Peter B. Glass, (white,) 
foreman ; E. Johnson (colored), Wm. Smith (colored), Gabriel Cooper 
(colored), Wm. F. Dover (colored), Josiah Mannerling (colored), W. H. 
Jackson (white), Philip H. Salters (colored), Andrew W. Curtis (col- 
ored), William Reed (white), John W. Gordon (colored), Edward Reed 
(colored;. 

THE TRIAL. 

Mr. Corbin, in opening the cause to the jury, said : We intend to 
prove in this case the charges alleged in the indictment. We shall first 
show that Dr. Avery, the defendant, was a member of the Ku Klux or- 
der in 1868. We shall show you the nature and character of the Klan 
/it that time ; we shall then show you what the Klan has become since, 
and what it was last winter. We shall show you that Dr. Avery was 
seen on several occasions with the Klan, when visiting colored jaeople, 
and whipping and outraging them in various ways. We shall further 
show you that this Klan not only whipped and outraged colored men, 
wlio were voters, in various^ ways, but that they went so far as to kill 
them. This will be the scope of the testimony. 



C55 

TESTIMONY OF OSJiIOND GUNTIIOKPE. 

O^raoud Gunthorpe, a witaess for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corhln. 

I reside in York County, and have lived there since 1868 ; I live ou 
the Catawba River, near Dr. Avery's; I have known him since the latter 
part of 1867 ; I was initiated in the Ku Klux Klan by Dr. Avery, and 
sworn in by him ; I remember a portion of the oath I took ; it was to 
oppose and reject the principles of the Radical party; we were to protect 
■widows and orphans and female friends, and the penalty for divulging 
any of the secrets of the order was death. [Mr. Corbin here read the 
oath from the constitution and by-laws of the organization]. As far as I 
recollect, that was the oath I took ; the organization wa^ repr3ssnted to 
me to be for self-protection, but when I was in it I found it to be a po- 
litical organization in the interest of the Democratic party ; I afterwards 
left it ; I joined in August, and left it in November; I understood from 
Mr. Cathcart, a member of the organization, that their purpose was to 
control the election at Rock Hill ; he said that the order had agreed to 
go there and crowd the boxes, and prevent as many Radicals as possible 
from voting ; Dr. Avery, I understood, was chief at that time ; I got ray 
dismission from the Klan from Dr. Avery ; I told him I was not satisfied 
with it ; I was sworn into the Klan in the woods at night, and there were 
some fifteen men present ; I was blindfolded and got upon my knees, and 
when the bandage was removed fronl my eyes there were a number of 
men pointing at me with their pistols. [The witness here described the 
signs, pass-words and grip of the order]. Each member of the order was 
required to have a pistol and a Ku Klux gown ; the object of the gown 
was to disguise the person ; it covered the whole body down, to the feet ; 
they had a kind of cap for the h^'^d that hung down over the face, mak- 
ing a false face ; the night I was initiated some of them had their dis- 
guises ou ; Dr. Avery had his on. 

Cross- Examinai ion by Mr. Wilson. 

I joined the order for self-protection ; there were rumors in the coun- 
try, and fears that the negroes would rise ; I don't know anything about 
the negroes being armed ; I heard there was a Union League at Rock 
Hill, and I heard that there ^vere threats from the negroes, but I don't 
know' anything positive ; I cannot sa)^ that I was afraid, but I thought 
that, as almost every other p&rson was going into the Ku Klux organiza- 
tion, that it might be best for me to do so ; after I left the Klan, 1 went 

« 



656 

to live thirty-four or thirty-five miles away; I never heard anything 
about jSTight-hakws in the organization, or about a Monarch or a Turk, or 
a ]Magi ; there was a CyclojDS and a Scribe in the Klan ; those were the 
only officers I knew of; I heard from Mr. Cathcart that their intention 
was to interfere at elections ; I only returned to York County once, 
and that was in the Christmas of 1869, and I did not see any of the 
members of the Klan then ; I don't know that the Klan conspired to 
injure anybody in 1868, nor do I know of their trying to intimidate 
voters, of my own knowledge ; I don't remember anything about Radi- 
cal rule being spoken of as one of the reasons for the organization of 
the Klan; its purpose, as I understood it, was to oppose and reject 
the principles of the Radical party ; I don't know about the organiza- 
tion since I left it. 

Re-Direct Examination. 

]Mr. Cathcart told me that the Klan had had a meeting, and agreed to 
go to the polls to crowd off Radical voters. 

TESTIMONY OF LAWSON B. DAVIS. 

Lawson B. Davis, a witness for the prosecution, being duly sworn, tes- 
tified as follows : 

Direct Examination hy Mr. Corhin. 

I reside in York County, and have lived there two years ; I was in- 
itiated as a member of the Kii Klux Klan ; I took the oath at my own 
house ; three pei'sons were initiated at the same time. I attended one 
meeting, and heard the constitution and by-laws ; that was in last Jan- 
uary. The contents of the oath, as near as I can remember, were that 
female friends, widows and orphans, were to be objects of our protection, 
and that we were to support the constitution as it was bequeathed to us 
by our forefathers ; and there was to be opposition to the 13th, 14th 
and 15th amendments ; the 14th was particularly specified in the 
oath I took. The oath was repeated, and I repeated it after them. 
There was no written document present ; the penalty for divulging 
its secrets was death. [The constitution and by-laws were here 
handed to the witness by Mr. Corbin.] That is the same oath that 
I took, except the second Section, which, as repeated to me, was 
"opposition to the Thirternth, Fourteenth and Fifteenth Amendments." 
The organization, when I joined it, was called the Invisible Empire of 
the South. After I joined I found it was the same as the Ku Klux or- 
ganization ; when I found that, I determined to leave them. The first 
• 



657 

meeting I attended, there were eight or ten persons sworn in, and a propo- 
sition was brought forward to make a raid upon such and such persons. I 
inquired the reason, and they said they were prominently connected with 
the Union League. Their object was to threaten and intimidate ])eople 
who hekl Radical principles. Their object was to discountenance people 
from joining the League. I heard this from tlie members. They said 
that those who belonged to the League were to be visited and warned ; 
that they must discontinue their connection with the League; if they 
did not on the second visit, they were to leave the country; and if tliey 
didn't leave they were to be whipped; and if after this they did not 
leave, they were to be killed ; I know this was how the purposes of the 
order were to be carried out; I have known of instances of raiding for 
guns ; they made one raid upon Jerry Adams ; Charley Byers tol 1 me 
they had whipped him ; he used to be chief of the Klan ; he said they 
had scared the boy very badly ; they had fired several guns at him, but 
didn't mean to hit him ; the only charge I ever heard against Jerry 
Adams was that he was a Radical ; he was a Republican and a colored 
man. Cliarley Good, who was whipped very badly by the Klan, came 
to my house two or three days al'terward ; he was a blacksmith, and a 
very good workman, the best in that part ; Charley Good was whipped 
so badly that he could not follow his trade for several days ; two or three 
weeks after that he was killed. 

Wesley Smith, and William Smith, and William White, were amono- 
those who killed Charley Good. Smith said he was a member of Smarr's 
Klan, and some members of that, Klan assisted in putting Charley 
Good's body out of the way; the two Smiths I know were members of 
the Klan. Charley Good was killed because he was a Republican. He 
told me, in the presence of some other persons, that he knew who had 
whipped him. I told him it would be better for him to keep that to 
himself. Wesley Smith gave as the reason for killing him that Charley 
Good knew some of the party who had whipped him. I was ordered to 
assist in disposing of the body of Charley Good. I did not, till then, 
know that he was missing. They came and summoned me and Mr. 
Howard to go and secrete the body, which was lying near to where he 
was murdered. Wesley Smith said that all who were members of the 
organization werd required to assist, so that they might be connected 
with it, and that the matter miglit not get out. I told him that I did 
not want to go ; but he said that all the mendiers had to go. We were 
ordered to meet at the gate, about a quarter of a mile from his house. 
I left about 9 o'clock, and went up to Mr. Howard's, and Wesley Smith 
had given him the same instructions. He did not feel willing to go; and 
I said those were my feelings exactly. We waited until the hour had 
passed ; and then, when we left, we met some ten or fifteen of the party. 
42 



658 

It was a dark night, and I only recognized Thm^ms L. Berry, Piuckney 
Caldwell, Vfesley Smith and Madison Sraarr. He is said to be the Chief 
of the Klan. Madison Smarr said I had escaped a scouring. He said 
the body was very heavy to carry. And Pinckney Caldwell told me 
that " Charley Good is now at the bottom of the river. The body would 
not sink, and I jumped in upon him," he said, "and fastened him there, 
as well as I could, with a stake." 

Charley Good was, at one time, a member of a militia company, and, 
being told it was not to his interest, he left it and returned his gun. He 
was regarded as a man of Republican principles, and was considered a 
person of some influence in that neighborhood. I never heard him 
charged with being a member of the Union League. 

Mr. Wilson. As Dr. Avery utterly disclaims and denies any connec- 
tion with any of these Ku Klux Klaus, by whatever name known, in 
1870-'71, we deem it wholly unnecessary to cross-examine the witness. 

TESTIMONY OF KIEKLAND L. GUNX. 

Kirklaud L. Gunn, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corbin. 

I reside in York County, and have been a member of the Ku Klux 
Klan ; I joined it in January, 1871 ; it was John Mitchell's Klan. Wes- 
ley Smith swore me in. The oath that was administered to mc bound 
us to oppose and reject the priuciples of the Radical party, and the pen- 
alty for disclosing its secrets was death. [The oath of the Ku Klux con- 
stitution was read by Mr. Corbin.] That was the same oath that I took, 
and it was supposed to be carried out by whipping and killing the mem- 
bers of the Radical party; opposition to the Radical party was, as I un- 
derstood, the chief purpose of the organization. I was present at two 
meetings, but never went on a raid. The first was a meeting of John 
Mitchell's Klan, to make a raid upon Bill Kell, because he was Presi- 
dent of the Union League ; they were going to kill him, but a brother 
of his, Hugh Kell, came into the crowd, and because he was there they 
thought he was sent as a detective, and they stopped the raid because of 
his being there. There was a considerable crowd ; about thirty-five 
people were there ; they were armed with guns, and had long gowns on 
that came nearly to their feet ; I could not tell what color they were, for 
it was dark ; they also had false faces, with places for their eyes, nose 
and mouth. All the members of the organization had to be armed ; 
some had pistols, some had shot guns, and some had muskets ; they also 
had a covering fur their horses that was white ; the members also had a 



659 

whistle, which made a shrill, gurgling noise ; they also had passwords, 
signs and grips. [The witness here described the grips, &c,, as on a for- 
mer occasion.] They also had a method of hailing any one who came 
to their meetings ; the party was challenged by saying, " who goes 
there ?" The reply was, " a friend.'' " Friend of whom '?" was demanded. 
" Friend of my country," was the reply. Tiieu they had a word of recogni- 
tion when a member was in distress and others might be present. The 
word was "Avalanche." I only started on one raid, known as the Jen- 
nie Good raid, but as I had no saddle I did not go. In the vicinity 
where I lived, I only knew of three persons who did not belong to the 
Ku Klux organization; those were my two brothers and a man named 
Hugh Burrs. 

Cross-examination waived. 

TESTI3I0NY OF THOMAS L. BERRY. 

Thcnias L. Berry, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct ExaminaVon by Mr. Corhin. 

Q. Are you a resident of York County ? 

A. I am, sir. 

Q. How long have you resided there ? 

A. All my life. 

Q. How old are you ? 

A. I am about thirty-seven years old. 

Q. Whether you were a member of the Ku Klux organization ? 

A. I was, sir. 

Q. When did you join it ? 

A. In January last. 

Q. Where at ? 

A. At Wesley Smith's. 

Q. Whose Klan ? 

A. Smarr's. 

Q. Madison Smarr's ? « 

A. Yes, sir. 

Q,. What did you find to be the purpose of the organization after y(»u 
were initiated ? 

A. Well, sir ; the j:)urpose of the organization was to break down the 
Radical party ? 

Q. How ? 

A. By whipping and killing, sir ; was my understanding in the mat- 
ter. 



660 

Q. Whether you knew this purpose to be carried out in that way un- 
der any circumstances. 

A. I did, sir. 

Q. Ptate briefly, if you please ? 

A. Wesley Smith told me that he and three other meu killed Charley 
Good ; William White, Wesley Smith, William Smith and Mr. Spencer, 
I don't know his initials ? 

Q,. How did they do it, and why did they do it? 

A. I suppose they done it because he belonged to the Radical party ; 
I don't know anything else. Well, Wesley Smith told me that they eave- 
dropped Jim Tiiompson's house the night of the 8th of March, and heard 
him make some threats against little Joe Smith ; I asked White about 
that thing, and he said he was mistaken. That they didn't do that ; after 
supper they left the house, and went down about three hundred yards, 
the road Charley Good was coming home to my house on. Came along, 
and they hailed him, and Wesley says : " Charley, which would yyu 
rather, be killed or take a hundred lashes." And Charley says: " You 
won't kill me, I reckon ; I don't know these otlier men, but I reckon you 
won't kill me." And he said they got off one of his straps, and tied him, 
and carried him iuto a bunch of woods, and tied him to a pine sapling, 
and shot him. Mr. White shot him. They both acknowledged that 
to me ; Wesley said White did it, and White also acknowledged that he did 
the shooting. 

Q. Did you know Charley Good well ? 

A. I did, sir. I have a riglit to know hira. 

Q. What sort of a man was he ? 

A. A very good man. I don't know anything to the contrary. He 
always obeyed my orders with a very good will. 

Q,. What was his trade ? 

A. He was a blacksmith. 

Q. What else did White say about the mode of killing him ? 

A. He said he shot him and then turned the butt of his gun and sunk 
the cock in his head — broke the stock of the gun oif. 

Q. What was done with the body? 

A. It was throwed in the river, sir. 

Q. What day was he killed? 

A. On the 8th of March, I think, about 8 or 9 o'clock. 

Q,. When was he thrown into the river? 

A. He was thrown in on the 10th. 

Q. Why? 

A. I suppose to hide the deed ; I suppose that was the cause ; I don't 
know anything else. 

Q. Were you present? 



661 

A. I was there. 

Q. Describe the funeral. 

A. Some of the gentlemen brought a piece of bagging along and went 
where he was tied. He was tied with his face down on the ground. We 
turned him over, and some of the gentlemen struck a light, and I &aw it 
was Charley Good, and I saw also where a ball went in ; picked him up 
and laid him in a piece of bagging, and there was three holes cut in each 
side of the bagging so a man could put his hand through and hold ; went 
on in that way and carried him to the river. 

Q. How did you sink him? 

A. He was sunk by putting a couple of plough shares to him ; I sup- 
pose they weighed about forty pounds. 

Q. Any other means taken to secure his body in the bottom of the 
river ? 

A. That was all that I know of. When he was carried down to the 
bank, he was rolled in by Piuckncy Caldwell — and I don't know what 
else was done. 

Q. Do you know of any other deeds of that kind by the Klan? 

A. Yes, sir ; on this raid — about the same time that Charlie G)od 
was killed — down in Chester District, there was two negroes killed, 
Sam Skafe and Eli McCollum. Pinckney Caldwell and Joe Smith told 
me that. They are members of the Klan. I don't know what Klan 
Pinckney Caldwell belonged to. Joe Smith belonged to Madison Smarr's 
Klan. 

Q. How did they tell you they did it? 

A. Tiiey done it by shooting. The men was taken prisoners, I think, 
above ; and they crossed the bridge and went on down towards Garland 
Smith's; and, after they found there was going to be no fuss, they 
brought these men back to the bridge and put them ou the bannisters 
and shot them. They told me — both of them — that they were both 
present. They was making fun of it; bragging about who done the first 
shot. One of the men, v. hen shot, fell back on the bridge, and the other 
fell in the water. They said when he struck water he swum off to a lit- 
tle pile of trash below and caught there, and they shot him dead. I 
think one of the men jerked an Enfield rifle and finished him. That was 
about the conversation that passed between me and the, men. 

Q. How many men did they tell you were present at that perform- 
ance ? 

A. They didn't say. 

Q. Have you any means of knowing ? 

A. No, sir; none at all. I was warned the night before ; but I refused 
to go. I didn't start the fuss, and didn't intend to help to end it. There 



662^ 

■was only two men in my country but what did go ; that was a neigh- 
bor of mine; he was warned, and I told him he had better not go. 

Q. When did you make up your mind to quit the organization ? 

A. I did, sir ; after this mau Charley Good was killed, I determined 
then, whenever I got a chance, to tell all I knew about it. They came 
to my house and whipped Charley Good ; my wife wasn't in a situation 
to have such acts, and they came very near ruining her. 

Q.. Then, Charley Good had lived with you ? 

A. Oh, he lived with me for a year, up to the time he was killed. 

Q. What other murders of the Klan are you familiar with ? 

A. Well, Will Leech and John Wallace told me that it was Mitchell's 
Klan that killed Aleck Leech. 

Q. Who was Aleck Leech ? 

A. He was a negro, living in that couutry, about ten miles from where 
I am living. 

Q. What did they say about him ? 

A. They said that it was Mitchell's Klan that did it. Didn't tell who 
Avas along, and said that they wasn't allowed to tell. Every mau that 
v,as along was sworn not to tell who did it. 

Q. Do you know of any other murders ? 

A. I believe that is about all, sir. 

Oroas-Exciiinination by Mr. Wilson. 

Q. You stated that you lived near Broad River ? 

A. Yes, sir. 

Q. How far is that from Rock Hill ? 

A. It is about thirty miles, I think, sir. 

TESTIMONY OF JOHN CALUWiLL. 

John Caldwell, a witness for the prosecution, being duly sworn, testi- 
fied as follows: 
* 

Direct Examination by Mr. Corbin. 

Q. Where do you live? 

A. I live in York County. 

Q,. How long have you lived there? 

A. About eighteen years. 

Q. How old are you ? 

A. I reckon I will soon be twenty- four. 

Q. What portion of the County do you live in? 

A. Five miles west of York, I think. 



663 

Q Plow far IVom Rock Hill ? 

A. I think it irf fifteen miles from York to Rock Hill; about twenty- 
miles, I reckon. 

Q,. When did you join the Ku Klux Klan ? 

A. 1871. 

Q. Where? 

A. At Yorkvilie. 

Q. Who swore you in ? 

A. Mr. Hope. 

Q. What Hope ? 

A. Albertus Hope. 

Q. Who is Albertus Hope ? What is his position ? 

A. Well, he just — I think they said he was a Chief. 

Q. Do you know whether he was a Trial Justice or not ? 

A. No, sir ; I do not. 

Q. Who was present when you were sworn in ? 

A. John Knox. 

Q. Do you remcnibi^" the o;ith that you took ? 

A. Yes, sir; not very much of it. Well, there wasn't much said 
about it ; just sworn ; that was about all. 

Q. How much do you remember ? 

A. He didn't say but two or three lines to mc. I don't know as I can 
repeat any of it. 

Q,. Do you think you would know it if you should hear any portion 
of it? 

A. Yes, sir. 

Q. It was repeated to you ? • 

A. Yes, sir. 

Q. Not read out of a book or paper? 

A. No, sir ; I don't think it was. 

Q. Listen to this : "I, John Caldwell, before the immaculate Judge 
of heaven and earth, and upon the Holy Evangelists of Almighty God, 
do, of my own free will and accord, subscribe to the folloAving sacredly 
binding obligation — " 

A. That is about all he ever said to me. 

Q. Did you hear this : " We oppose and reject the principles of the 
Radical party ? " 

A. No, sir ; never heard that. 

Q. Did you hear that part which runs as follows: " Any member di- 
vulging, or causing to be divulged, any of the foregoing obligation, shall 
meet the fearful penalty and traitor's doom, which is death ! death ! ! 
death ? " 

A. He didn't say that to me, but I heard it afterwards. 



664 

Q When other persons were initiated ? 

A. No, sir ; but I heard men about the order talking about such 
things. 

Q. Have you lieen on raids of the Klau ? 

A. Yes, sir. 

Q. Describe them ? 

A. Well, I don't know whether I can, exactly or not ; I think I was 
on a raid in January or February; I aint certain which. 

Q,. Where did you meet? 

A. IMet on the other side of Mrs. Macafee's, in an old field. 

Q. Where is that ? 

A. That is in York. 

Q. Whom did you meet there ? 

A. I met Harvey Gunnings and Will Johnson, Marion Macafee, John 
Garner, Levi Garner, and that is all I remeiuber, I believe. 

Q. Did you put on disguises? 

A. Yes, sir. 

Q. Were you armed ? 

A. Yes, sir, 

Q,. With what? 

A. With pistols. 

Q. Were you on foot or mounted ? 

A. Mounted. 

Q,. Where did you go ? 

A. Went to Mr. Ferris'. 

Q. What Feriss' ? 

A, John R. Ferriss'. 

Q. What did you do there? 

A. Tliey didn't do anything but shoot. 

Q. Whom did you shoot at, and what did you shoot at? 

A. We aimed to shoot Mr. Ferriss, I suppose, but they shot the 
house. 

Q. Tell fls all you know about it? 

A. Well, then we didn't do anything more after ; we left there, and 
went home. And then the next raid was, I believe it was Mr. Barret's, 
and I think that that was in February. 

Q. Tell us where you met? 

A. We met at a flat rock above Dr. Good's place, cross-roads ; and 
then went on to Mr. Barret's, and brought him out, and talked to him 
a while, and come on back home. 

Q. Tell us your next raid ? 

A. The next was Mr. Harkness's, John Harkuess. 

Q. Go on and tell us what you did? 



665 

A. We went tliere and talked to hiin awhile. 

Q. What about? 

A. About politics. 

Q. What did you say to him ? 

A. I don't know, sir, wliat was said. ' 

Q. What were your politics ? 

A. I have not got any, myseJf. 

Q. AVhat were this man's politics you went to visit ? 

A. Well, he belonged to the Conservative party ; aiid that is the party 
I belonged to myself. That was what he was talking about — wanted to 
change. 

Q. Whether he was supposed to be a Radical ? 

A. Yes, sir ; he was. 

Q. And that was why you went to visit him ? 

A. Yes, sir. 

Q,. What w'as your talk ? 

A. Well, trying to get him to change his notions. 

Q. Did he promise to do it ? 

A. Yes, sir. 

Q. Anything said about his publishing a card in the newspaper? 

A. Yes, sir ; I think he put one in the paper. 

Q. Was he ordered to do it ? 

A. Yes, sir ; they ordered him to do it. 

Q. What was the object of the card ? 

A. To show, I suppose, that he ha'd (j^uit the party — quit the Radical 
party. 

Q. And joined the other j)arty ? 

A. Yes, sir. 

Q. Was Mr. Harkness a white man or a colored man ? 

A. He v,'as a white man. Then we came back to Mr. Harvey Smith's, 
and they talked about the same conversation to him. 

Q. Who is Harvey Smith, a white man or colored man? 

A. He is a white man. 

Q. You had the same conversation with him that you had with Hark- 
ness ? 

A. Yes, sir. 

Q. Did he promise to change his politics ? 

A. Yes, sir. 

Q. What did he promise to do ? 

A. He promised to put a card in the paper; but I don't think he 
did it. 

Q,. Was he a Radical ? 

A. Yes, sir ; he was a Radical. 



666 

Q. He promised to put a card iu the paper, renouncing his Radical- 
ism '{ 

A.- Yes, sir. 

Q. What did you do then — go home? 

A. Yes, sir ; wt-ut liome then. 

Q. Now, about your next raid ? . 

A. Then the next was Mr. Hambright's — Abner Hambright's. 

Q. Didn't you go on a raid about the end of February, when you met 
a party up at Kuip's Mill? 

A. Yts, sir; but that was after Hambright's raid. Ntj, you are right, 
it was before the Hambright's raid. 

Q. Did you meet at Kuip's Mill ? 

A. Yes, sir. 

Q. Who met? 

A. Myself and a Gwinn. Well, he didn't meet there; Gwinn was 
there. I don't know what his business was there, but lie didn't meet for 
that purpose ; he said, at least, that he didn't belong to the order. 

Q. Who eke did you meet there ? 

A. No one else. Mr. Kulp and Gwinn was the only one there. We 
went from there to Gwiun's old school-house, and mat Bobby Caldwell 
and John Garner and Levi Garner and Mart Hall, and I believe that is 
all. Tliere wasn't but seven or eight. 

Q,. Did you put on disguises? 

A. Yes, sir; put on disguises. 

Q. Were you armed ? 

A. Yes, sir. 

Q. What with? 

A. Had pistdls. 

Q. Mounted ? 

A. Yes, sir. Well, I think there was but three pistols along. 

Q. What were the other arms ? 

A. Nothing. 

Q. Did any man join you with a gun ? 

A. No, sir. 

Q,. Wasn't there any man who joined you that night? 

A. Yes, sir ; oh, yes. 

Q. He had a gun ? 

A. He had a gun. There was several that joined us that I don't know 
the names of. 

Q,. Tell us what you did ? 

A. We met at the school-house and went into the big road, and went 
down as far as Jack Smith's and got a drink of water ; and went on 



667 

down to a nigger there — Pi-ince McCautz — and brouglit him out and 
whipped him. 

Q,. What did you whip him for ? 

A. They were whipping when I went to them. I didn't understaVid 
what they were whipping him for, unle^^s it was — I think they were try- 
ing to get something out of him about the burning; and then they went 
on down to York, to Murphy's house, and then they turned and went 
back up the road, and went on to Anderson Brown's. 

Q. Didn't you go somewhere else first? 

A. No, sir; went from the nigger's house to Murphy's, and then from 
Murphy's to Anderson's. 

Q. Who is Anderson Brown ? 

A. Well, he is a nigger; that is about all I can tell you. 

Q,. What did they do to him ? 

A. Well, they killed him. 

Q. Tell us all about it ? 

A. I don't know how they done it. I know they sliot him ; at lea^t, 
I know they shot at him, for I heard reports of pistols. 

Q,. Where were you when tliey killed Iiim ? 

A. I vyas at the horses — me and Mr, Gwiun. 

Q. How far were they from you ? 

A. I think it was about two hundred yards. 

Q,. Did you hear the negro make any fuss ? 

A. No, sir ; didn't hear a word ; was too far off to hear anything. 

Q,. Hear them when they went to tlie house ? 

A. Yes, sir ; I only heard the (l^og bark ; that is all I heard. 

Q. Hear them taking him out? 

A. No, sir. 

Q. How many shots did you hear? 

A. I heard about ten. 

Q. What did they do with the body? do you know? 

A. Left it lying there. 

Q. What occurred after they came back to their horses ? 

A. Well, tliere wasn't nothing. I asked what did they do, and the 
word was said " mount your horses," and there was nothing said until 
we got out into the road, and then tliey were sworn in the road. 

Q. Who was sworn, and what was done ? 

A. Just read to us, the men that was there, not to divulge such a 
thing. 

Q. Every man was sworn ? 

A. Yes, sir ; not one man separately. All sworn together. 

Q. Who administered the oath ? 

A. Bobby Caldwell. 



668 

Q. What was the object of swearing you fellows at that time? 

A. I supporie to keep from telling it; thought may be it would bind. 

Q. Did you have any conversation with Bobby Caldwell after that, 
about this murder '? 

A. Yes, sir. 

Q. State wliat it was ? 

Q. He told me — I asked him about killing of the negro, and he said 
they killed him, but said he shot nary a shot at him, for his ball was in 
his pistol yet. I had no idea of killing him when we went there. 

Q,. Now^ tell us about the next raid you were on ? 

A. That was Mr. Hambright's. Well, they went there and whipped 
him. 

Q. Who was Abner Hambright ? 

A. He was a white man — a Radical. 

Q,. Whip him because he was a Radical ? 

A. No, sir ; I think not. They went there after guns. 

Q. But he was known to be a Radical ? 

A. Yes, sir. 

Q. Whip him badly ? 

A. Yes, sir ; whipped him pretty bad. 

Q,. Go on and tell us about it ? 

A. Well, they v.'hipped him, and then they turned around. 

Q,. (by the Court). How did they get him out uf his house? 

A. Went to the house and brought him out. 

Q,. How did they get into the house ''. 

A. I thiuk they knocked the door open and went in. 

Q. Break the door down ? 

A. No, sir ; I don't think we broke it down. Just knocked it open. 

Q, Where did they find him? 

A. Found him in his bed. 

Q. With his wife ? 

A. No, sir. 

Q. Found him in bed? 

A; Yes, sir ; then they brought him out and tied him. 

Q,. How did they tie him ? 

A. I don't know how they tied him. Then carried him off a piece, 
and said that they tried to hang him, and tried to make him tell where 
the guus was. Either him or his son belonged to the garrison, and had 
those si.xteen-shooters. 

Q. They whipped him— what with ? 

A. Whipped him with hickories. 

Q, How much, and how badly ? 



669 

A. Well, sir, I cannot tell you. They whipped him pretty bad, 
though. 

Q. What did they say to hira ? 

A. After they got through whipping him there wasn't anything said ; 
only told hira to go back into the house — and he went back. 

Q,. What time of niglit was tliis? 

A. I don't know, sir ; it was ^arly in the night, for we went part of 
the way before night ; about 8 or 9 o'clock, I reckdd, in the night. 

Q. What next did you do that night? 

A. Came from that back to Mr. Lowrie's, and there they whipped a 
nigger there, a fellow by the name of Harris Neiley. 

Q. Tell us all about it ? How did you get hiih ? 

A. Went to the house and got him. 

Q. How did you get into the house ? 

A. They oi^ened the door to us. 

Q. Take him out of doors ? 

A. Yes, sir. 

Q. How far from the house ? 

A. About fifty yards. 

Q,. What did you whip him with ? 

A. Whipped him with hickories. 

Q. Whip him pretty badly? 

A. Yes, sir ; whipped him tolerably bad. Not near so bad as they 
whipped Hamhright, though. 

Q. What next did you do ? 

A. Came from tliere on home. 

Q. Whip any other negro that night? 

A. No, sir ; no more whipping done that night. 

Q,. What did you whip that last negro for? 

A. About his politics, I reckon. 

Q. What were his politics ? 

A. Well, he was a Kadical. 

Q,. Whipped him because he was a Radical, then ? 

A. Yes, sir ; I suppose so. 

Q. After you fiuished whipping that last colored man, what did 
you do? 

A. We came on home then. 

Q. What time did you get home in the morning ? 

A. Me and Johu Caldwell stopped at uncle John's. It was about 4 
o'clock when we got there ; and staid until after breakfast, and then 
came home. 

Cross-examination waived. 



670 

TESTIMONY OF JOHN TH0MAS30N. 

Jolia Tlioma.sson, a witness for the prosecution, being tlniV sworn, tes- 
tified as follows : 

Direct Examination by Mr. Corbin. 

Q,. Do you live in York County ? , 

A. I did sir; buPl was chased from there by the Ku KIux. 

Q. When? 

A. In Alavch. 

Q,. Tell what the Ku Klux did for you ? 

A. Well they was on me four times ; which do you mean ? 

Q. Give an account of it; tell the jury ail about it ? 

The Court. He says they were on him four times, and he wants to 
know which you Avant. 

Q. Begin at the beginning ? 

A. The first time there was six came; they didn't abuse me any; they 
told me they wasn't going to hurt me, but they cussed me and asked me 
who did I vote for, and I told them that I voted for Mr. Wallace and 
fbr Mr, Hall and Mr. Miles Johnson, and they asked nae why did 
did 1 vote for them ; I told them I thought they were right ; and they 
told me that Miles Johnson Avas a damned rascal ; I told them I didn't 
know that. Then they made me raise my right hand and swear that I 
would never do so again. They asked mo did I belong to the Union 
League ; I told them I did ; asked me wasn't I a leading member ; I told 
them I wasn't. Tliey said to me that they were told that I had more 
influence over the colored population than any man in York County, and 
if they ever knew me to vote so again they would send me to hell ; that 
they came right from there, and they wonld send me there. Then they 
told me to go in the house and they wouldn't hurt me. 

Q. Did you know any of them ? 

A. I didn't know any of ihem. 

Q. How were they concealed ? 

A. They were all disguised. 

Q. Now about the next raid? 

A. They didn't disturb me much ; they cussed mo and knocked me 
about a little and went off. 

Q. Were they disguised? Did they talk about your politics? 

A. Yes, sir. 

Q. Wl)at did they say about them? 

A. They asked me did I belong to the Union prirty ? I told them I 
did. They said did I ever intend to vote that way again ? I told them 
I didn't know as I would. They told me, God damn me, if 1 did, they 



671 

would put me where I never would see this world agaiu. Then they 
asked me did I have any gun ? I told them I didn't. Asked ine had I 
any pistol ? I told them I hadn't. They searched the house, and didn't 
find any ; and then they went off and left me. The third raid tliey came 
on me, I didn't know any but one man that was among them. Thwre 
was four came the second time; and when the third came, there was only 
three came in the house. 

Q. Were there others out doors ? 

A. I heard others down at the cross-roads; I live riglit at the cross- 
roads. Thay came in and told mo to make up a light, and while I was 
making up a light, one was kicking me behind all the time ; and when 
he says "Make up a light," I says " You won't let me." But I made 
up the light, and, afterwards, I lit a little piece of pine. He says : 
" What are you going to do with that light.?" I says: " Didn't you tell 
me to make up a light?'' They jerkod it oat of my haad^, and put it 
out, and one just raised up to my clock and put two minnie balls through 
it, and took the gun and bursted the glass part in it all to pieces. 1 had 
another little glass and a large glass, and they broke them all to pieces; 
and my house had three glass windows, and they knocked out every 
pane but one — I suppose they didn't notice that. They put all the 
clothes out of the chest, and throwed them over the floor, and made me put 
on another pair of pantaloons ; and my pocket book was in the pants that I 
had on, and had seven dollars in it. They took the pocket book out, 
and took the money out and throwed the pocket book up in the corner. 
There was a knife in the pocket, and they told me to take that knife and 
throw it in the tire. I throwed it in the corner. They said : " It is not 
in the fire ; throw it in the fire." They made me throw it in the fire. 
About this time — there was a bottle of ink sitting in the house — they 
made me drink it. I took some in my mouth, and didn't intend svi'al- 
lowing it. Says he, " Swallow it down, God damn you — swallow it down !" 
I sw'allowed it. So then he told me — asked me if I was going to leave 
this coun'ry. I told him T didn't know as T was. Says he, " We'll give 
you from now until Saturday night, and if you ain't gone, we'll know 
what to do with you." [The witness here related a matter too indecent 
for publication.] They catched me and jerked me by the collar, and 
knocked me down and wrenched my shoulder; and it hurts me U) iliis 
day to raise my arm above my head. 

Q. Did they leave you then ? 

A. Yes, sir ; they left me then. 

Q. You then left the country ? 

A. Ye-^, sir ; I then left. They told me they would give me till >Satur- 
day night to get away. 

Q,.- In v.hat portion of Yoik County do you live? 



672 

A. Four miles and a half from York, on the road. from Yorkville to 
Charlotte. 

Q. How far from Rock Hill ? 

A. Oh ! it is twelve miles from Rock Hill to my house. Then I left, 
and was gone about two weeks nearly, and I was intending to go home on 
Wednesday night; so I got to the depot pretty late, and it was so late I 
didn't get over ; and on the very night I allowed to went home they were 
back to my house again. Well, they never came in at all, and didn't say 
anything to anybody, but gave a shot through the house — through one 
door and out at ihe other — which I know their intention was to kill who- 
ever was lying in the trundle bed. Then they went around and shot 
close to the window, and missed ray wife's head about that far [indicating 
about three inches]. 

Q. Did you have to leave your property there ? 

A. Yes, sir ; I got my wearing clothes, and the balance I had to leave. 
I would say that it was the death of my wife. They scared her to death. 
She died the 20th of July. 

Q. Do you think that that hastened her death ? 

A. I do, i^ositive. 

Q. D ) you own a farm in York County ? 

A. I do. Her old mistress — we didn't live together in slave times — 
and after we was liberated her mistress told my wife if she would stay 
there until her death she would give her the plantation. I intended to 
go to Tennessee, but, at the old lady's request for my wife to stay, I gave 
way ; and after her death she gave. her the plantation — made it over to 
her and her bodily heirs. That was where I was living at that time. I 
was farming there. I worked some on my place and worked with other 
men. 

Q,. Whether you have had to abandon that plantation? 

A. Yes, sir ; I left it on that account ; lost it — lost the property by it. 

Cross-examination waived. 

TESTIMONY OF ABRAM BRUMFIELD. 

Abram Brumfield, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corbin. 

Q,. Where do you live? 

A. On Major Berry's land, in York County. 

Q,. How long have you lived in York County? 

A. I came there wlien I was ten years old, out of Virginia ; raised 



673 

pretty much right there where Mr. Pugh lives now. That has been my 
stationary home, principally. I have lived at other places though. 

Q. How old are you? 

A. Sixty-four in May. 

Q. Have you voted in York County ? 

A. Yes, sir. 

Q. Vote there at the last election ? 

A. Yes, sir. 

Q. What ticket did yoa vote? 

A. Radical. 

Q. Whom did ycJu vote for for Congress ? 

A. Mr. Wallace. 

Q. Now tell us whether the Ku Klux raided on you ? 

A. Well, they came to my house, I think, something after midnight ; 
the moon was shining ; it had been raining, and then cleared off very 
pretty. 

Q. What month was it ? 

A. In March. I had laid out about four week;*, until I had taken a 
pain in my shoulder. 

Q. Why had you laid out ? 

A. To keep out of the way of them. Every night raiding and shoot- 
ing, the dogs and nobodyelse couldn't rest hardly. When you were hid 
you were not satisfied, you went and hid again. So I got so bad in the 
shoulder, I thought 1 had as well die in the house as out of doors; But 
when I saw death coming, I got out'; and I ^told my wife if they came 
there to tell them she didn't know where I was. When I heard them 
coming, I went out ; and I got the door about half open, and saw them 
coming, running, With their guns in their hands, disguised, and I just 
threw the house 'twixt me and them and laid right down agin the fence, 
about twenty yards from the door, and agin I could get my eye to the 
crack of the fence, the door was surrounded. They had a colored boy 
alon'g — I call him a boy, but he was a man — he was a boy to me. He 
called me twice, and my wife spoke and said he was not here ; and the 
next call he made, they told me to open the door ; and she opened the 
door, and they came in and says : " Come on, come on, he is up, I see 
the sign." They all goes in but two, and these staid with their guns 
drawn, just ready, if I sprung, out to fire on me. They searched below; 
asked her a good many questions ; and when they couldn't find me there 
they went up stairs ; and when they went to go up,- these out of doors 
with the guns went in and closed the door ; and when they closed the 
door, I crawded off about a hundred and forty yards from the house, and 
crawled under a pine bush, and there I laid. After they had caroused 
as much as they could, and couldn't get me, then they came out. The 
43 



674 

first parcel came down below the stable, fall within ten steps of me, and 
when they stopped their hor.^es, I thought they saw me ; but I laid right 
still, and the other ones came on to them, and they couluded the way to 
go back to Ebeuezer. 

Q. You heard the conversation ? 

A. Every word. i 

Q. What did they say ? 

A. Some said: " Shall we go back by Ebenezer?" And the others 
said : " We'll go back this way and cross." Well, they went down 
across the road ; tore down Deacon Fewell's fence, and went on down 
towards Ebenezer. I laid there until I thought they was finally gone, 
and steps out of that; and when I went to the house my wife had gone 
to Thompson's house. 

Q. Did you know any of them ? 

A. I never knowed hut one man by his voice. 

Q,. Who was that ? 

A. Dr. Avery. 

Q. This man? [pointing to the prisoner.] 

A. Yes, sir. 

Q,. How long have you know him ? 

A. From a little bit of a boy ; raised within a mile of my door. 

Q,. Have you been talking with him all your life? 

A. Oh yes, sir ; worked for him ; worked for his father. Am well ac- 
quainted with all of them — all the generation of that family. 

Q. You recognized his voice? 

A. I did ; immediately. 

Q,. Where was it you recognized his voice ? 

A. When he was right forninst me, and I right inside of the fence, in 
a pine bush. You see, when they got down there, they didn't change any 
voice ; but when they was at the house they talked altogether another 
way. 

Q. How? 

A. [Imitating]. Nung, nung, nung, come from hell — from North Car- 
olina — just for the purpose of putting old Abe to death. 

Q. But when they got down by the pine bush, whei'e you were con- 
cealed, they didn't conceal their voices? 

A. They didn't call my name, then ; but they just talked, then, which 
way they would go — and I catched his voice just as quick as he spoke — 
and I catched it bef)re they left the house. Then, when I came back, I 
tells my wife that I didn't know ojie of the voices but Dr. Avery's — and 
I knowed his voice, I didn't care where I heard it. 

Q. You feel absolutely certain that that was Dr. Avery's voice ? 

A. Yes, sir ; I am. 



675 

Q,. Who else was whipped that night — do you kuow ? 

A. Now, I cauuot say ; for 1 don't kuow whetlier they whipped Mr. 
Postle before they came to my house or afterwards. He was whipped. 

Q. Do you kuow Postle ? 

A. Yes, sir. 

Q,. When did you see Postle after you were whipped ? 

A. I saw him on a Mou(hiy morning. 

Q,. What day of the week was this night ? 

A. That was on a Friday night, at my house. 

Q. This visit was on Friday night, and you saw Postle the next Mon- 
day morning ? 

A. Yes, sir. g 

Q,. And had conversation with him ? 

A. Yes, sir; I saw him at Rock Hill. 

Q. Did you toll him that you had been visited ? 

A. Yes, sir ; I had heard he was whipped before I saw him. 

Q. Did he tell you he was whipped Friday night? 

A: Yes, sir. 

Cross Examination by Mr. Wilson. 

Q. You say this was in March ; do you mean last March ? What year 
was it? 

A. I cannot f'^li the day of the month. 

Q. Can you tell what year it was ? 

A. Of course I can tell what year ; it was this year. 

Q,. You say you don't know the day of the month ? 

A. No, sir. 

Q. But it was Friday night ? 

A. Yes, sir. 

Q. And it was a moonlight night? 

A. Yes, sir, it was; I am satisfied of that. 

Q. And you know Dr. Avery by his voice ? 

A. I do. 

Q. The parties were in disguise, you say? 

A. They were. 

Q. Did you never hear two men talk whose voices were alike ? 

A To be certain I have. 

Q. How long before that had you seen Dr. Avery? 

A. I cannot tell how long, for I saw him a heap of times, not close to 

him ; but I kuow the last time I did talk with him. 

Q. How long before that did you talk with Dr. Avery? 

A. I don't know how long it was ; he could tell you ? 

Q. Was it a mouth ? 



676 

A. I can't tell you. The last time, lie called me to him ; he kuows 
the time. 

Q. Was it a week ? 

A. More than that. 

Q. Was it more than two weeks ? 

A. It was along some time in the summer, I can't tell. He can tell. 

Q. Was it more than two weeks ? 

A. I won't tell you that ; I might tell a lie. I tell you as nigh as I 
can ; I don't know. 

Q. Your only reason for saying it was Dr. Avery is that you thiuk 
you knew his voice ? 

A. I don't think. 

Q,. You are certain you knew his voice ? 

A. I knew his voice. 

Q,. You are willing to swear, now, that he was there, just oecause you 
heard his voice ? 

A. Yes, sir ; I am ready to swear, any time, that it was Dr. Aveiy's 
voice. 

Q,. And yet you say that there are voices alike. Do you know that 
there is another man in that country that has a voice like Dr. Avery ? 

A. I do not. 

Q,. How can you say but what some man, with a voice like him, was 
there that night? 

A. I have never heard any one talk like him but his father. 

Q. You swear, then, it was Dr. Avery, simi^ly because you have not 
heard any one talk like him ? 

A. There is no man talked like him in Ebenezer since his father died. 

Q. Do you know whether these disguised men came from Ebenezer or 
not ? 

A. I guess it, from his voice. 

Q. Do you know it ? 

A. I cannot say that I know it. 

Q,. You do not know it ? 

A. That is, I call him one ; I don't know the balance. 

Q. Do you know where those men came from ? 

A. Yes, sir ; they came from Ebenezer, I sn])p()se. 

Q. How do you know ? 

A. I saw them. They said they came from hell, l)ut I know that no 
man that goes to hell comes back again. 

Q. How do you know they were from Ebenezer? 

A. No man goes to hell and comes back. 

Q. Tell now how you know they were from Ebenezer ? 



677 

A. I knew he lived in Ebenezer, and that was his voice, and of course 
I must recognize his voice; he must be living in Ebenezer. 

Q. Because there was a voice you believed to be Dr. Avery's, there- 
fore all the crowd lived in Ebenezer ? 

A. I said Dr. Avery did. 

Q. How do you know the crowd came from Ebenezer ? 

A. I didn't say anything about the crowd. I said that he came from 
Ebenezer. 

Q. Do you like Dr. Avery ? 

A. Pie has been a good man to me, and I have been good to him, and 
his father ditto. 

Q. Didn't he have your two sons arrested by the Sheriff on account of 
threats ? 

A. Of course he did, for you relieved, them. You know it. 

Q,. Just answer mj'- question. Didn'^ the Sheriff' arrest them ? 

A. They told me so ; I don't know anything about it. I was in Char- 
lotte. 

Q. And they were bound over to keep the peace ? 

A. I cannot answer. 
•Q. Didn't you know it from them ? 

Mr. Corbin.— That won't do. 

The Court. — That wouldn't be evidence. 

Q. So far as you are concerned, didn't you hear it ? 

A. Of course I heard it ; I was in Charlotte, and I heard it. 

Q. Did you ever make a threat to have Dr. Avery arrested ? 

A. Who? ' 

Q. You ? 

A. No, sir; I hadn't no right to do it. 

Mr. Corbin (to Mr. Wilson.) When do you mean? 

Q. After your sons were arrested and bound over, did you ever make 
a threat that you would have him arrested ? 

A. No, sir ; I did not. I hadn't no grounds to do it on. He never 
knowed nothing wrong of me. If he did, he never has told it. Been 
raised by him, and treated me like a gentleman ; and I did the same to 
to him; but these Radical parties — that is what is the matter. 

Q. You say this was Friday night, and Postle was whipped the same 
night? 

A. I heard so. 

Q. You. heard it from him ? 
" A. I did, 

Q. Was there any one else whipped that night? 
. A. Not as I heard of. 



678 

Q. Are you certain that you heard of no one else being Avhipped that 
night? 

A. Never heard of any one else being whipped that night. 
Q. Was there a man by the name of Sam Slurgis living in your 
house? 

A. No, sir ; he was living there that night, but he didn't stay there 
regular. He has for a home with i\Iiss Ilhody Jones, but he lives all 
about. 

Q. Was he whipped ? 
A. No, sir. 

Q. AVhere do you say he lived ? 

A. He lives at Miss Rhody Jones', in Rock Hill, altogether. 
Q. Where is Rhody Jones' ? 
A. Not far from Rock llill. 

Q,. This side of Rock Hill — between here and Rock Hill, or the other 
side ? 

A. No ; it is on there across — you know all that country. It is not 
far from John Campbell's, going straight towards your liouse. 
Q. I don't live there? 

A. I know ; where your stationary home was before you went to 
York. 

Q. He lives in the direction of John Campbell's? 
A. Yes, sir. 

Q. Sort of to the left, or western course ? 
A. Yes, sir ; to the left, as you go from Rock Hill. 
Q. How far is it from where you lived to where Pustle lived ? 
A. Well, I can guess at the distance. It is about a mile, I reckon, to 
where Mr. Avery lives from me ; I don't suppose it is very much more 
than a mile from that to where Postle lives. I don't think it can be more 
than two miles and a half, at the outside. 

Q. Did they go in the direction of Postle's house from yours? 
A. I tell you they went across from Major Berry's, in the big road 
leading by where John Biggcrs lives, towards Mr. Fewell's; I don't know 
"which way they Aveut after that. 

Q,. Could they go to Postle's house that course ? 

A. They could by taking the left, of course ; you know the road as 
well as I does ; no use to ask me ^hat. 

Q. Wasn't that the plainest road to go towards Postle's house ? 
^. I don't know ; it would be, after they got in the big road, and I 
don't know but it would be just as nigh to go that way as the other ; 
you know every piece of that road as well as I do. 

Q. What distance was Avery from you when you saw him ? 

A. I don't think he was more than ten steps, if it was measured. 



679 

Q. Se^ him in the big road ? 

A. No, sir; no big road there, only just a cow path like, and I \va? up 
in the fence lying on my back ; he was there rig^t by me. 

Q. How many men do you think were there f' 

A. I was so bad scared I can't tell you. 

Q. You were pretty badly scared ? 

A. I was, of course. 

Q. How many men do you think there were? 

A. I think there was some nine or ten, I reckon. 

Q. All on horseback ? 

A. Well, now, I will say I sort of throwed my eye on them ; any how 
I will say as many as ten, I think. 

Q. All riding up ? 

A. There was some afoot, I am told. 

Q,. Were the crowd scattered or together ? 

A. Pretty close together" when I saw them ; they rode all up in a 
bunch and concluded which way they would go ; and the leading man's 
voice, (Dr. Avery's,) said, "We'll go this way;" then they came down 
that way and I heai'd them till they got clean off. 

Q. What did they say ? 

A. Said they would go down to the fence and then come across the 
big road. 

Q. Did they say where they were going? 

A. No, sir;, if they did I didn't hear it — might have said among 
themselves. 

Q,. Use the very words, now, that you heard said ? 

A. Said they would go down to the fence and then come across ; and 
vv'hen they went to the fence they throwed it down — but they didn't men- 
tion that in my view. 

Mr. Wilson, at this point, asked if the Government witnesses wei'e in 
the room ; and, on being told that thfey were, requested their exclusion. 
The Court granted the request, and they retired. 

TESTIMONY OF EMELINE BRUMFIELD. 

Emeline Brumfield, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corhin. 

Q,. AVhose wife are you ? 

A. Abram Brumfieid's. 

Q,. The man who was just on the stand? 

A. Yes, sir. 



680 

Q. Now, tell the Court and jury about the Ku Klux visiting you last 
wittier or spring — what they did, and what they said '? 

A. Well, they came to my house some time in March — I don't just re- 
member the day of the month — but I know the night they came there 
was on a Friday night, and Mr. Brumfleld had been lying out for four 
weeks. 

Q. Why? 

A. He heard that the Ku Klux was coming to visit our place; and I 
told him he had better lay out, for fear they would come on him and 
whip him or kill him. That night he came in, he was all swelled up, 
and came in and told me to make up a poultice and poultice his arms 
and shoulders ; that he couldn't lay out any longer ; and I made answer 
to him : " You come in to-night, and to-night the Ku Klux may come 
in on you and kill you." He says : " I reckon yot." Says I : " Well, 
you can run the risk, but I am doubtful for you." " Well," he says, 
" make a poultice, and I will lay down and ^ake some rest." He went 
to bed, and I laid on two chairs before the fire until midnight. His 
poultice became cold, and his pains got so much worse, he got up and 
told me to warm his poultice, and I did so, and he says : "Now, you go 
and lay down, and I will sit up and watch." I went to bed, but didn't 
go to sleep for an hour. After so long, I dropped off' to sleep, and, while 
I was asleep, I was waked by the alarm of the dog. I knew, when that 
dog barked, there was some person in the house. Sprung out of bed, 
and when I got to the door, Brumfield was opening the door and going. 
He says : " There is somebody out," and he went out to the lower end of 
the house, and I went to the chimney, and we thought if it was them, we 
didn't want them to see that there was persons going to watch for them. 
I seed persons coming up through the woods running, and we made 
back. I says : " Ku Klux ! Ku Klux !" and he just throwed the house 
twixt him and them, and run back for the fence, and lay down, and they 
just come on, and had a black man, by the name of Hampton Avery. 
He hailed the door three times, and called Brumfield, and I says " Brum- 
field ain't here ;" and the man that had the cap on says : " You are a 
God damned liar ; he is here." I throwed the door open, and says: " If I 
am H God damned liar, you walk in and get him." He says : " Now, you 
have got to tell me where he is; if you don't I will blow your God 
damned brains out." I says, "then you will have me to shoot to-night." 
He says, "where is he?" I says, "he left here this morning betwixt 
eight or nine o'clock ; gone to the circle to work." " What sort of a 
thing is a circle ?" I says, " going everywheres to work in blacksmiths' 
sho})s." They says, " you are a God damned liar ; he has gone to the 
Union League." I says, " he has not." " Ain't he got some of Scott's 
guns here." I says "no." " Don't he belong to the militia?" I says 



681 

" he does not." There was four meu on the floor and whispered, and I 
heard it. They says " he don't belong to it." They says " well, I am 
damned sorry he ain't here," (" I am not sorry " I said, " I am very glad ;") 
for w'e are men from North Carolina, and been riding ever since yesterday, 
dinner time ; we heard this old man Brumfield talked a good deal, and I 
come here to put him where he can't talk any more in this life." I told 
him, " I am sorry you say you come here to put my husband where he 
couldn't talk any more," The next thing,^ he said, " have you got any 
biscuits here ?" I told him " no." " Has you got any whisky ?" I told 
him " no." " You are damned poor here." I says " yes, I am poor." 
" Don't that old man, Brumiield, make a heap of money?" I says " he 
don't." They says " you are a damned liar." I says " you know more 
about his business than I do." They says " let's go up in the loft and 
look for him." I says " there is nobody up there but Sam Sturgis." 
" Who is he ?" I said " he came here to-night and I got him to stay 
with me." " Come down out of that ; don't wait to put your breeches 
on; comedown." He came down, and just as he got on the second 
step they throwed him down and sprained his wrist. When he 
came down and got up he says, " will you raise your hand and 
swear that you don't know anything about that old man, Abram 
Brumfield?" And the old man, he says: "Yes, I will raise my 
hand and swear I don't know any more about him than the dead 
that is in the grave." Then they came back to me again ; " well, 
you tell that old man, Abram Brumfield, to leave off" from that damned 
League, do you hear?" I told him X would. Tell him I came here to- 
night for him. Then they goes back to the old man again, aud says : 
" Ever you w^as hung ?" Told him, no, sir. " Ever you was half hung ?" 
No, sir. " Well, don't you want to feel how half hanging felt ?" He says : 
" No, sir." Well, you have got to feel it ;' and they put the line over 
his neck and held the ends of it up ; and then he comes back to me 
again, and he says :, " You tell that old man, Abram Brumfield, that I 
Came here to-night to send him to hell." I says : " I am very sorry to 
liear that." " Well, that was my business here to-night ; for I came just 
from hell myself, aud I come to send him there." And I answered him, 
" when a soul dies and goes to hell, it never comes back here again." He 
says : " How you know ? has you been there ?" I says : " No ; but I have 
experienced enough to know that a soul never comes back from hell 
again." " Well, you tell old man, Abram Brumfield, that I come here to 
send him to hell." 

Q. Did you recognize anybody ? 

A. The Captain. 

Q. Who was he? 

A. There he sits, before me. 



682 

Q. This man — Dr. Avery ? 

A. That is the man. 

Q. How did you know him ? 

A. His disguised face didn't cover his moustache good, and I seen 
that. I had a good fire and a big light, and I seen that. 

Q,. How else ? 

Q. In the time when he was standing at the bed and I was sitting ou 
the side, I noticed very much ^je didn't use his left hand ; that he used 
his right had ; had his pistol in it, and he went to slip his pistol in this 
hand, and caught my handkerchief and throwed it ou the bed and caught 
me by the hair and beat my head against the bed-post, and in the time 
when he had the rope around old man Sam Sturgis' neck I seed his lame 
hand ; I noticed that very particularly. 

Q,. What is the matter with his left hand? 

A. I don't know ; I heard that it was shot ; that is all I know 
about it. 

Q. He couldn't use that hand well ? 

A. No, sir; he didn't use it good that night in my house. I reckon 
he made use of it as good as he could when he was holding up the old 
man, when he had the line around his neck. 

Q. How did he hold his pistol ? 

A. In his left hand, as well as I could discover. He just went around 
this way [illustrating] with his hand. 

Q. That is, he pressed the left hand against the side ? 

A. Yes, sir ; he did ; I noticed that good. 

Q. How long have you known the doctor ? 

A. Ever since he was a little boy. I used to belong to the widow 
Starr, and she lived in Ebenezer. His brother married my young mis- 
tress. 

Q. And you have seen him very often ? 

A. Yes, sir ; I have. 

Q. Dili the doctor disguise his voice ? 

A. He didn't use his voice that he got now ; now and then he lost it ; 
but he tried to talk outlandish, but he forgot once in a while ; he sort of 
forgot his voice and he would talk again very cute. Once in a while he 
would say, " do you know any man in this party?" I says " no," but I 
knew him in my heart, but I didn't dare say I knew him. 

Cross-Exaviination by 3Ir. M^ilson. 

Q. What sort of a disguise did this man have on ? 

A. He had on a sort of red. 

Q. Describe it. 

A. I can't descril)e it any more than it was a sort of red. 



683 

Q. What had he on his head ? 

A. He had a cap on his head, aud had horns to his cap and tassels on 
the end of his horns, and he would hook me in the face with his horns, \^ 
but his horns wasn't stiff, and they mashed up. 

Q. How much of the face did the cap cover ? 

A. It covered all but his moustache here [pointing to the chin.] 

Q. Do you call that his moustache ? 

A. Well, whatever you call it. i 

Q. You mean the beard that comes from the chin ? 

A. That is what I mean. 

Q. Well, the moustache is something else ? 

A. Well, that is what I call it. 

Q. You mean you saw the beard growing from the chin ? 

A. Yes, sir; that is what I saw. That is the very color of the beard 
what I saw. 

Q. You saw a beard, and that was all you saw of the face. 

A. That was all I seen of his face, and the other mark was his hand. 

Q,. Describe tlie gown. 

A. I didn't notice the gown particularly, but I kno\v it came down to 
his heel. 

Q. Did it cover his shoulders ? 

A. Come clean down to his boot, I tell 3'-ou. 

Q. From the neck ? 

A. From the neck clean down. 

Q. How about the arms ? 

A. I didn't notice the arms particularly, but I noticed his hands. 

•Q. Had they bishop sleeves ? 

A. I tell you I didn't notice how it was made particularly. 

Q. Can you tell us anything about the sleeves? 

A. I don't want to tell you a lie. I just want to give you the truth, 
and no more.. 

Q. Was there any belt over the gown ? 

A. There was, no belt but the line what he took off and hung the old 
man Sam with. 

Q. What sort of a line was it ? 

A. It was a cloth line — it wasn't a rope ; it looked like a buggy line, 
and just the cloth part of it. 

Q. Did you know his voice ? 

A. I didn't go by his voice much — I had other instruments to go 
by. 

Q. You went by the beard that you saw ? 

A. I didn't go by the beard. 

Q. And by his hand ? 



684 

A. I went by his beard, here, and his hand. 

Q. Yoa swear by his beard, and you swear by his hand ? 

A. I don't tell you I swear by his beard — I swear by his hand and his 
beard. 

Q. That is the reason you say it was Dr. Avery ? 

A. It was him, and no person else. 

Q. Is there anybody else that has a lame hand but him ? 

A. There is no one in that neighborhood got a hand like Dr. Avery — 
and neither carries it like him — to my knowledge. 

Q, Isn't there a man in that neighborhood, by the name of Frony 
Fewel, that has a lame baud ? 

A. I know nothing about him. 

Q. You don't know that he has a lame arm precisely like Dr. 
Avery ? 

A. I know there was no person in that neighborhood that had a lame 
hand like Avery. I seed iiis moustache, and I seed his hand, and I 
knew it was the mouth of Dr. Avery. 

Q. You swear, now, positively, that it was Dr. Avery, on account of 
the beard and the hand ? 

A. His beard and his hand. 

Q. What time of night was this ? 

A.. As near as I can guess, it was between one and two o'clock in the 
night. 

Q. What sort of a night was it — clear or cloudy ? 

A. It wasn't right clear, nor neither right cloudy — and the moon was 
shining. When I first opened the door I was so scared I could hardly 
speak to them, for every one was standing with their pistols pointed so — 
just like if the old man was there they would shoot him. 

Q. You were very much frightened ? 

A. Yes, sir ; but my fear soon went away. I seed I had to be the 
' woman and the man in my house. 

Q. And you became perfectly cool, then ? 

A. Yes, sir ; my scare soon went away. After he spoke two words, 
" You are a God damned liar," all the scare just dashed away. 

Q,. How did Dr. Avery hold the line up when he had it around Stur- 
gis' neck ? 

A. With his hands. That is the time I got to see that little lame 
hand again. 

Q. Was there any one assisting ? 

A. Oh, he didn't raise him off the floor. 

Q. Was any one assisting him ? 

A. No, sir; no one but himself 

Q. Did Sam Sturgis resist him any way ? 



685 

A. If he did, I didn't see it. I didn't notice whaL Sam done. 

Q. Was there a light in the house ? 

A. A very large light ; I^had a pine knot burning, and it shined all 
over the house. 

Mr. Corbin. I would like, if the Court please, to have the prisoner 
stand up, that we may see whether he has a lame hand or not. 

The Court. He is not bound to stand up. 

Mr. Wilson. Stand up, Doctor. 

[The prisoner arose.] 

The witness (continuing). That is the hand I seen. 

TESTIMONY OF SAM STURGIS. 

Sam Sturgis, a witness for the prosecution, being duly swoi^n, testified 
as follows : 

Direct Examination by Mr. Corbin. 

Q,. How old are you ? 

A. Sixty-one, past. 

Q,. Where do you live ? 

A. In the East portion of York County, near Rock Hill ; about a mile 
from Hock Hill, I reckon. 

Q. Now state whether you were at Abram Brumfield's house last spring 
some time, when the Ku Klux came there ; if so, what happened ? 

A. Yes, sir ; I was there. They routed me up out of bed. They told 
me to come down ; don't wait to put on your clothes, damn your soul, 
comedown. I got up and come down. 

Q. Did you wait to put on your clothes ? 

A. I had my clothes on, all but ray coat. When I got about on the 
step next to the bottom, they fastened me by the ears and bully ragged 
me over the house, and jerked me down to my knees and kicked me, and 
and [)ut a pistol or two to my head. They threw this wrist out of place. 
There it is, anybody can see. [Showing his wrist]. I have never been 
well since. 

Q. NoAV, did you recognize anybody ? 

A. Yes, sir. 

Q. Whom did you know ? 

A. There is the man, sitting over there, [pointing to the prisoner.] 

Q. How did you know him ? 

A. I knew him by his face ; and I caught his voice befjre I came 
down out of the loft. 

Q. Was there anything else about him that you recognized? 

A. Yes, sir ; I recognized his hand. 



686 

Q. You say you saw his face ? How ? 

A. When he came up and asked me if I knowed him, I looked up to 
him and told him I didn't know him. His false face was off to one 
side, and I noticed all his whiskers then. 

Q. How much of his face did you see ? 

A. Just aloug about this portion of his face, [indicating the right 
jaw.] ■ 

Q,. How long have you known him ? 

A. Near about twenty-two years. 

Q. See him often ? 

A. Saw him frequently ? 

Q. Talk with him often? 

A. Not much conversation with him ; but I have heard him talk very 
frequently down in Rock Hill. 

Q.' Wliy did they jerk you about with that string on your neck ? 

A. Because I was a Radical, and belonged to the Union League. 

Q. What did they say about it? 

A. They made me swear against it ; they said that was their business ; 
they come for to break down these damned Union Leagues, and these 
Radical parties. They made me swear I never would vote a Radical 
ticket any more. 

Q. When did }"ou first see that little lame hand that you recognized? 

A. I saw it directly after he got it shot ; that was a long time ago. 

Q. You have known that hand ever since ? 

A. Yes, sir. 

Q. Now, when did you first see it that night ? Wlieu you came down 
stairs ? 

A. I saw it before I came down stairs ; I was looking right dowu 
through a crack as wide as your hand. 

Q,. Was there a bright light in the room ? 

A. Yes, sir ; they had a light rousted up there. 

Q. Did you recognize the hand as soon as you saw it ? 

A. Yes, sir. 

Q. Did you see it after you came down ? 

A. Yes, sir. 

Q. How did they put that rope around your neck ? 

A. They had a running noose and throw^d it over my neck and 
drawed it up. 

Q. Did you notice the hand then ? 

A. Yes, sir. 

Cross Examination hy Mr. McMaster. 

Q. Where do you live ? 

A. I live about a mile from Rock Hill Station, in York County? 



687 

Q. When was the first time that you said you thought you knew Dr. 
Avery that night ? 

A. When I was up in tlie loft. 
Q. When did you speak of it the next time ? 

A. Well, I won't be certain about the next time. I can't tell you ex- 
actly when. 

Q. Who was the first person you mentioned it to ? 
A. I didn't mention it to any person, no way. 
Q. Nobody at all ? 

A. Not very particular at all, because I didn't like the fun of it ray- 
self, and I didn't want anybody to laugh at me. 

Q. Was Major Merrill the first man you gave information to that 
Dr. Avery was in the crowd ? 
A. Yes, sir, he was there. 

Q. What time was that — after martial law was declared in York ? 
A. Yes, sir. 

Mr. Corbin. — Martial law has not been declared there yet. 
Mr. McMaster. — Oh, that is a play upon words. 
Q. How many were in the room that night ? 
A. Seven. 

Q. How many outside ? • 

A. I don't know that; I couldn't see outside. 

Q. When you got on the second step, how many caught hold of you ? 

A. Two. 

Q. What did they do then ? 

A. They just caught my ears and bullied me, and one of them asked 
if I had ever been hung. I told them no. 

Q. Who asked you that ? 

A. That is the man [pointing to the prisoner.] 

Q. How was he dressed ? 

A. He was dressed in some kind of a dark concern like a gown. 

Q. Was it hung loose over his body ? 

A. Yes, sir. 

Q,. Go on — describe it. 

A. I can't exactly describe it, but that is the way it was. 

Q. What had they on their heads ? 

A. Some one or two had horns on. 

Q. Had this gown sleeves ? 

A. I can't tell you exactly whether it had sleeves or whether it just 
had holes through it, 

Q. Was it like a sheet that a ghost wraps itself with, or were the 
arms hanging out ? 

A. The arras on the outside. 



688 

Q. Who put the rope around your neck ? Is this the man ? [pointing 
to prisoner.] 

A. No ; that ain't the man. The man that put the rope around my 
neck was a black man. 

Q. When he put that rope around your neck, what did he do ? 

A. He pulled me up by the neck and damned me, and said, if I didn't 
tell where Brum field was, he would hang me, and he pulled me over the 
floor right smart. 

Q. Did he use both, hands or one ? 

A. One. 

Q. Are you certain ? 

A. Yes, sir ; because I was looking right at hira. 

Q. Did he choke you ? 

A. Yes, sir ; he did. 

Q. Could you talk? 

A. Yes, sir ; I could talk after a fashion, but my neck was swelled for 
a week or two afterwards. 

Q. Do you know who that black man is ? 

A. Yes, sir; Howard White. He goes by the name of Howard 
Davis. 
• Q. What has become of him ? 

A. He has run off. 

Q. When you told Major Merrill about Dr. Avery, did you tell him 
about this Howard Davis, too ? 

A. Yes, sir. 

Q. Who were the other men concerned in that thing, besides Howard 
Davis? 

A. Another black man — Sam Stewart. 

Q. Was there any other black man along? 

A. Another, called Frank Cowans. 

Q. Was there any other black man along that night ? 

A. There was a yellow one, named Henry Toole. 

Q. Besides those colored people, how many white people were there ? 

A. Three white people. 

Q. Give us the names of the white people that were there that night? 

A. Johnny Gage. 

Q,. Ho\v was he dressed ? I am curious to know ? 

A. He was disguised just like the rest. 

Q. Did he have horns ? 

A. No, sir. 

Q,. He is such a tall man that he didn't care about making himself 
look taller. 

Mr. Corbiu The witness didn't say that. 



689 

Mr. McMaster. I say that outside. 

Q. What sort of a man is Gage ? 

A. A little, low fellow. 

Q. Who was the other white man ? 

A. Mr. Earnest Lowry. 

Q. How do you know that all these seven men were there that night ? 

A. I learned who they was before I came out of the loft. 

Q. Do you use spectacles ? 

A. I have not any use for them as yet. 

Q. You are certain that those seven men were there ? 

A. Yes, sir. 

Q,, You can swear to it? 

A. Yes, sir. 

Q. On a stack of Bibles as high as the heavens ? 

A. Yes, sir ;• I will. 

The Court adjourned until the 30th, at 11 A. M. 



Columbia, December 30, 1871. 

TESTIMONY OP HARRIET POSTLE. 

Harriet Postle, a witness for the prosecution, being duly sworn, testi- 
fied as follows : 

Direct Examination hy Mr. Corhin. 

■ I live in the eastern part of York County, about four miles from Rock 
Plill, on Mr. James Smith's plantation ; I am about thirty years old ; 
my husband is a preacher ; I have a family of six children ; the oldest 
is about fourteen ; the Ku Klux visited me last spring; it was some time 
in jMarch ; I was asleep when they came ; they made a great noise and 
waked me up, and called out for Postle ; my husband heard them and 
jumped up, and I thought he was putting on his clothes, but when I got 
up I found he was gone; they kept on hallooing for Postle, and knock- 
ing at the door ; I was trying to get on my clothes, but I was so fright- 
ened 1 did not get on my clothes at all ; it looked like they were going 
to knotik the door down ; then the rest of them began to come into the 
house, and my oldest child got out and ran under the bed ; one of them 
saw him, and said : " There he is — I see him ;" and with that three of 
them pointed their pistols under the bed ;.I then cried out : " It is my 
child ;" they told him to come out ; when my child came out from under 
44 



690 

the bed, oue of them said : " Put it on his neck ;" and the child com- 
menced hallooing and crying, and I begged them not to hurt my child ; 
the man did not hurt it, but one of them ran the child back against the 
wall, and ground a piece of skin off as big as my hand ; I then took a 
chair and set it back upon a loose plank, and sat down upon it; one of 
the men stepped up ; seeing the plank loose, he just jerked the chair 
and threw me over, while my babe was in my arms, and I fell with my 
babe to the floor, when one of them glapped his foot upon the child, 
and another had his foot on me ; I begged him, for the Lord's sake, to 
save my child ; I went and picked up my babe ; and when I opened the 
door and looked, I saw tliey had formed a line ; they asked me if Postle 
was there; I said no; they told nie to make up a light, but I was so 
frightened I could not do it well, and asked my child to make it up for 
me; then they asked me where ray husband was; I told them he was 
gone; they said: "He is here, somewhere." I told them he was gone 
for some meal; they said he was there, somewhere, and they called me a 
damned liar ; one of them said : " He is under the house ;" then one of 
them comes to me, and says : " I am going to have the truth to-night ; 
you are a damned, lying bitch, and you are telling a lie ;" and he had a 
line, and commenced putting it over my neck ; said he : " You are tell- 
ing a lie — I know it; he is here." I told them again he was gone ; when 
he had the rope round my head, he said : " I want you to tell where 
your husband is; and," said he, "the truth I've got to have;" I com- 
menced hallooing, and says he : " We are men of peace, but you are 
telling me a damned lie, and you are not to tell me any lies to-night ;" and 
the one who had his foot on my body mashed me badly, but not so badly as 
he might have done, for I was some seven or eight months gone in trav- 
ail ; then I got outside of the house, and sat down with my back against 
the house, and I called the little ones to me, for they were all dreadfully 
frightened ; they said my husband was there, and they would shoot into 
every crack — and they did shoot all over the place — and there are bullet 
holes there, and bullet marks on the hearth yet ; at this time there were 
some in the house and some outside ; and says they to me : " We 
are going to have the truth out of you, you damned lying bitch ; he is 
somewhere about here ;" said I : " He is gone;" with that he clapped 
his hands on my neck, and with one hand put the line over my neck ; 
and says he, again : "We're going to have the truth out of you, you. 
damned bitch ;" and with that he beat my head against the side of the 
house till I had no sense hardly left ; but I still had hold of my babe. 

Q. Did you recognize anybody ? 

A. Yes, sir, I did ; I recognized the first man that came into 
the house, it was Dr. Aver^^ [pointing to the accused.] I recog- 
nized him by his performance and when he was entangling the line 



691 

round my neck; as I lifted my hand to keep the rope off my neck, 
I canght his \a.me hand ; it was his left hand that I caught — his 
crippled hand — I felt it in my hand ; and I said to myself right 
then, " I knows you ;" and I knew Joe Castle and Jas. Matthews, 
the old man's son; I didn't know any one else; I suppose there was 
about a dozen altogether there ; Dr. Aver}'^ had on a red gown with a 
blue face, with red about his mouth, and he had two horns on his cap 
about a foot long ; the line that he tried to put over my neck was a 
buggy line, not quite so wide as three fingers, but wider than two ; they 
said to me that they rode thirty-eight miles that night to see old Abe 
Brumfield and preacher Pi stle ; they said that they had heard that 
Preacher Postle had been preaching up fire and corruption ; they alter- 
Avard found* my husband under the house, but I had gone to the big house 
with my children to take them out of the cold, and I did not see them 
pull him out from the house. 

Cross- Examination by Mr. McMaster. 

Mr. Smith's plantation is about two miles from Ebenezer ; I don't 
know how far it is to Abram Brumfield'.s house; I never was there; I 
do not live far from Dr. Avery ; I see him frequently, sometimes every 
day ; Dr. Avery was always kind to my husband as far as I knew; there 
were no cross feelings between them that I knew ; I don't know that he 
ever talked or advised with my husband about Ids preaching. The raid 
was made on us on Tuesday night ; it was a bright moonlight night ; 
Dr. Avery was the first man that came into ray house ; I don't think I 
knew him until the fire was made up ; he did not put the rope round 
my neck till there was a liglit ? he had a pi.stol in his hand when he 
came in, but he did not have anything in his hand when he put the rope 
over my neck ; I don't know that he made a loop or noose before he put 
the line oyer ray neck, but I know when I raised my hand, I oauglit his 
left hand in mine. Its true I was very much frightened, but I know that 
the man that first came into the house was the one that put the line over 
my neck ; when they put the line over my child's neck, they asked him 
where his father was ; the child did not know, and began to cry. I don't 
know who it was that lifted the plank up, and tilted me over with my 
babe; I was sitting on the chair on the plank, with my babe in my arms 
whfii they tilted me up. The man \A\o put his foot on my babe was Dr. 
Avery, [pointing ;] I can't be sure whether he put the linfe over my neck 
bef ire or after I was tilted up, but it was after the light was made. My 
child was scared well nigh to death, and now, when the dog barks, it 
looks like it would go into fits ; I begged him to take his foot o9' ray 
child, and I gral^bed him by the boot, and then he took his foot ofl' when 
I asked him. Dr. Avery, I know, has a little family of his own, of little 



692 

children; but I am certain he put his foot on my child that night. 
Some of the Ku Klux had false-faces on, and some had old rags tied 
over their faces, and some had white faces ; the only three I knew were 
Dr. Avery, Mr. Ca.stle and Mr. Matthews; I don't know what has be- 
come of Mr. Castle; I believe he has gone away. The first white person 
I told about this was Mr. Corbin ; I told my husband about it, but he is 
the only one besides I told particularly ; Dr. Avery has talked to me 
some about it; one day Mr, Cooper came to see my husband; Mrs. 
Avery wanted him to come up to her to see her, but my luu^band was 
away ; she wanted my husband to withdraw the charge, or something 
like that. . • 

lESTIMOI^Y OF ISAAC A. POSTLE, ALIAS ISAAC, THE APOSTLE. 

Direct Examination by Mr. Corbin. 

Isaac A. Postle, a witness for the prosecution, being dulj sworn, testified 
as follows : 

I live in York County, near Rock Hill, about four miles from Mr. Jas, 
Smith's place ; I have been a preacher for about five years ; I have lived 
in York County ever since the days of emancipation ; the Ku Klux came 
to my house last spring ; it was on Friday night, and I judge it^ was 
between three and four o'clock ; they came and called for Postle to come 
out; thinking I might be killed, and being quick to wake, I jumped up, 
and my judgment was to get out of the way, and there being a loose plank 
in the house, I got under the floor; my wife she put the plank back, and 
after she had gathered the baby ofiTthe bed, she just went and opened the 
dour ; all this time they were knocking and calling out to open the door ; 
when they got in they began with her to find out where I was ; some said 
he is under the house, and my wife told them he had gone aw^ay ; that I 
had gone up the river for some meal ; they cursed her and told her it was 
a d — d lie; some of them made for the loose plank, and cried out here's 
where he went ; they turned up the plank and looked, and conuneuced 
beating and knocking about; I heard my wife screaming and hallooing, 
and after they had got through with her, and knocking iic;r over, and put- 
ting the rope around her neck, they called for a light, and they got two or 
three pine torches ; some of them went on one side of the house with their 
torches, and the oihers stood on the other side, and I could see thorn look- 
ing" round and under the house. 

Then one of them, that I took to be the captain, saw me and pointed his 
pistol at me, and said, " come out, if you don't I'll kill you ;" then I came 
out as far as the top of the floor, when he grasped me by the hair, and one 
of the men struck me with something like a club; it was a thing that 
tapers ofl' at one end, and people call it a sling-shot ; the man who had hold 



693 

of me asked if I knew him ; I --aid "no sir," but lie still h:id my liair ; he 
then put a line round my neek and gathered it up in his hand, and took me 
out of the house; they took me about two hundred and fifty yards, till we 
struck the woods ; then t'ao crowd got round me and que-stioued me, and 
asked me if I hadn't been preaching up burning and corruption, and 
telling the jjeople to set fire to the gin houses and barns; said I : "No, 
sir; I never did ;" said [, " I have never preached nothing but peace 
and harmony ; " aud they re|)eated their questions over and over again ; 
said I: " We have had no disturbances in this part of the country ; no 
burnings nor anything like that in this part of the country;" said they : 
" Do you know who set any of the:?e barns on fire? " said I, " I do not; I 
have been traveling up and down the river preaching in my circuit, and 
'don't know anything about it ;" then they called me a d — d liar, and 
said I could tell them if I liked ; then they began to question me about 
guns, and I told them that I knew nothing about them ; then they said : 
"Jerk him with the line;" aud they made one of them go up a tree; "and," 
said they, " we will have thetruth directly ;" I tliought theti they were going 
to hang me ; the one that went up, he drew me up till I had to stand on 
tip-toe ; only )ny toes touched the ground, so that I was choked and could 
not tell them anything; then they slackened the line a bit and put all 
these questions to me over again ; said I: " I know nothing about any of 
these burnings or disturbances; " then the captain told each of the men 
to hit me two licks apiece, and they stepped up, and he handed them 
something like a halter, an iuch aud a half wide, and with that they gave 
me two licks apiece, as hard as they could ; my flesh was cut so much 
that it bled, lor I had nothiag on but ray shirt and my slips. 

Then the man that had been up in the tree came down, and took the 
strap, and he hit me his two licks ; the captain then took the line and 
loosed it off my jieck, and questioned me something about my children, 
and said : " Didn't you say that you would raise your children as good 
and as nice as anybody's children?" vSaid I: "No, sir; I cannot raise 
my children so well, because I am not able." With that, he took the 
line oflT my neck ; " and," said he, " if there is any more burning of gin 
houses in the country, we intend to kill ten niggers for ever}' one burned, 
and you'll be the first one." He said it just so. Then they asked me 
about my politics, and if I did not belong to the League society, and 
wasn't I for Grant; and I says, " No, sir;" and I told them I was sick 
at the election time, and couldn't vote, aud, at another time, I was away 
preaching. Tiieu they asked me again if I did not preach corruptioa 
and burning, and I told them I didn't, I j)reached only peace and har- 
mony, and I didn't advise or instruct anything that was wrong. I said 
that ever so many times, but it didn't seem to have any impression. 

Q. Did you recognize any of the party ? 



694 

A. Up to the time they took the rope off my ueck I didn't recognize 
any one, for, up to that time, it wasn't my expectation that they would 
let me off; but when they took the rope otf ray neck, it kindled hope in 
my mind, and the man they called captain talked with me, and said that 
they were men of peace, of justice, and of right, and then it was that I 
believed that Mr. Avery w-as one of the men ; I had no knowledge of 
any man up to that time, because, from the time they took me from the 
house, they kept jerking at the rope that was round my neck ; and when 
they took the rope off, I gathered some hope, and then I judged that Mr. 
Avery was the man, and that Howard White was another, and James 
Matthews another. These men I have spoken of I believe were in the 
party. Howard White is a colored man, and I believe a Democrat. He 
has left our part of the country, and I don't know where he is now. I 
didn't recognize anybody else in the crowd. The men appeared to be 
dressed in different colors. When I was under the house, I looked at 
the captain, and his dress appeared to be blue and yellow. He had 
horns on his head over a foot long, and something over his face that 
appeared to be of different colors. I didn't hardly know what it looked 
like, but 1 believe it was blue and yellow. Pie had a long gown that 
came pretty much down towards his feet. Some of them had on dresses, 
as I saw while I was under the house, that appeared to be short dresses 
like half-grown girls wear, and seamed to come down to their knees. 
Some of them had old handkerchiefs over their faces, with holes in them 
for their eyes. I think there were about twelve in the company, but I 
did not count them. 

Q. Had you been preaching corruption and burning in the country ? 

A. I had not, sir. I can state what I preached. 

Judge Bond. We don't want that; we don't want to hear a sermon. 

A voice (sotto voce) at the counsel's table. It might do the Court 
good. 

A. I had some conversation with Abram Brum field about his being 
visited by the Ku Klux. I went to Rock Hill on the Sunday morning 
after the Friday on which I had been whipped, and saw Al)ram Brum- 
field, who told me how they visited him, and he was thinking how he 
could make his escape ; but there was a company of Yankees there at 
the time, and we supposed they were come ti protect us. I and Mr. 
Brumfit'ld talked it over, and I told him that I had heard them say they 
had come 38 miles that night for old Abe Brumfield and Postle. I was 
under the house when I heard that. 

Cross-Examination by Mr. Wilson. 

I am acquainted with Nancy Dunlap, but I do not know that I men- 
tioned to her about my having been whipped ; and I don't remember 



695 

talking with her at Ebenezer, in the presence of other peopk^ about it, 
1 knew it was Dr. Avery, from the commonness of his talk, and I mean 
by that that I was commonly with him, and knew his language very 
Avell, because I passed and re-passed him so often, and I naturally believed 
he was the man. I did not make a statement afterwards that Dr. Avery 
was not the man. 

[A paper was here handed the witness.] 

Q. Did you sign that "paper? 

A. Yes, sir. 

Q,. And make that affidavit ? 

A. That is my signing. 

Q. Before what magistrate did you make that affidavit? 

A. Mr. Crook, I believe it was. 

Q. Was the Kev. Mr. Cooper present ? 

A. He was. 

Q. Who drew the paper ? 

A. Mr. Cooper. 

The affidavit was here read, as follows : 

'* Personally appeared before me, R. C. Crook, Trial Justice in and for 
the County aforesaid, Isaac A. Postle, alias Preacher Postle, who, being 
duly sworu, deposeth and sayeth, that the following charges against Dr. 
Avery, on the night in March, 1871, to oppress, threaten, injure and 
intimidate the said Isaac Postle, the preacher, are, according to the evi- 
dence now appearing, incorrect and false. 

(Signed) ' A. POSTLE." 

Q. You made affidavit, then, that the charges against Dr. Avery were 
false ? 

A. No, sir ; Mr. Cooper put in that about my being satisfied ; it was 
false and incorrect. 

Q. Was not this read over to you before you signed it ? 

A. Yes, sir ; Mr. Crook read it to me in Mr. Cooper's presence. 

Q,. Was any one else present ? 

A. I don't know that there was any one else present, but several per- 
sons were passing and repassing. 

Q. Did you nut express the belief that the charge against Dr. Avery 
was untrue ? 

A. If you want that matter explained, I can tell you all about it. 

Q. Well, tell all about it? 

A. After the charges against Dr. Avery were, I suppose, published in 
the papers, one night, Wednesday, my wife told me after I had come 
home from an appointment, that Mr. Cooper had been to our house, and 



69G 

wanted to see me very much ; he wanted to see me as much in my be- 
half as it was in his own. He told my wife he wanted to see me very 
much the next morning, Vvhich was Tliursday. I crossed the country, 
and met with a man that Mr. Avery used to own, returning from Ebe- 
uezer. Mr. Brumfield was with me when he met us. He told us that 
Mr. Avery was put in prison for whipping Postle and Sam Sturgis ; and 
said he, " Mr. Cooper tells me that they asked about you, and wanted 
to see you." I told him I would be certain to see him ; and he said 
I must be sure to come on to Mr. Cooper's house. Going home I 
passed by Elias Masse's house, and calling there, he told me that 
]Mr. Cooper had been there that night, and had left word that if he 
saw me to be sure to tell me to come up to see him. I first went 
home to see my wife, but she was out at a neighbor's. I went there 
to see her ; and while I was there, Mr. Cooper came there, and we 
had some talk. Says he : " Postle, I want to see you as a friend ;" 
and says I : "a friend is hard to find ; I have been living in trouble 
and alarm all the year." Says he : " I want to talk with you about 
a matter that is in your behalf as well as in mine." Says he : " Charges 
are coming out against Mr. Avery, and he is put in prison for whip- 
ping Postle and Sturgis. From that, we believe that you have put 
him in prison." Said I: "I have not put him is prison." "Well," 
said he : " here are the charges anyhow." Then said he : " If we can 
show you sufficient lawful evidence, will you withdraw the charges ?" 
I told him, Mr. Cooper, I did not believe he could do it with lawful 
evidence. " Well," said he, " if we can, will you do it ?" Said I : "1 
don't believe you can." Said he : " It is not your will or desire to pun- 
ish a man that is innocent ?" Says I : ''It is not the mind of any Chris- 
tain man. much less a preacher, to punish a man if he is innocent." 

Then he wanted tt) know if Dr. Avery had ever threatened me or in- 
timidated me at any time ; "no," said I ; "as for passing and re- passing, he 
has never interfered with me." He urged upon me to give him some sat- 
isfaction, and wanted me to go that evening and see Mrs. Avery. " No," 
said I, "I have been traveling and am tired;" but he u'rged it upon me 
very much, and though I did not want to go, at last I consented. " She 
is in trouble," said he ; and I said, " I did not put Mr. Avery in prisou, 
and I cauuot take him out." "Never mind," says he, "you just come 
and see her ; he won't be in prison always," says he ; and then I began to 
think when they got out it might be that they would oppress, or arrest, or 
whip and disturb us, as tliej" had done. Mr. Cooper would not leave me 
until I promised to go and see Mrs. Avery the next morning ; my wife 
tried to persuade me not to go, but I saw Mr. Cooper riding up the road, 
and I told him I could not do Mrs. Avery any good; and I said to him, 
" I don't know Mrs. Avery, and I learn that she is a high spirited woman. 



697 

and if I talk to lier she may got mad, and I don't know what will come 
of it;" said he, " you must go." We went up, and she invited us in, and 
we sat hy the fire, and she said to me, " has ]Mr. Avery ever threatened 
you, or hindered you, or forbidden you from bearing arms, or anytbingof 
that kind?" " No," said I, "he has never interfered with me in that 
way." She then told me that Dr. Avery had been put in prison for whip- 
ping Postle and Sam Sturges; "and," said she, " if I give you lawful 
evidence, that will satisfy you that he did not whip you, will you withdraw 
the charges?" Says I, " Mrs. Avery, I did not put Mr. Avery in prison, 
and nothing that I can do can take him out. I never swore against him, 
and I don't intend to swear either way," said I ; then she got up and read 
the charges to mo; said I, " that was when they shot into my house and 
asked me about arms;" then she, said that she had sufficient evidence 
to show that he had not troubled me ; said I to Mrs. Avery, " these Ku 
Klux do their work in the night, and no one knows it ; and I believe that 
your husband could leave your bed without you knew it." We had been 
talking so long tluit I began talking very common to her ; " I will swear," 
said she, " that Dr. Avery did not do it." I felt very small, being with a 
lady like her — of her ability and position — and I felt it was almost wroug 
not to submit to her ; " will you not take ray oath," said slie, " for I will 
swear to it;" says I, "I don't want you to swear ; I never swore against 
Mr. Avery ;" then Kizzy and Lou Chambers said, " we will swear that 
Mr. Avery did not whip y(ju ; he didn't leave his house or bed ;" said I, 
"when it was done it was midnight and dark work, and nobody knows 
anything about it up to this time;"- then they talked to me for a con- 
siderable time. 

At last, Mrs. Avery said, " our talk is all in vain ; and," said she : " If 
it was me, I would not ask the favor of any man. I would present my 
case and call for my evidence, and they would come up and prove me 
guiltless ; and," said she, " I would sue you for ' salt and perjury,' if I 
don't mistake the language, for I am not very common with words accord- 
ing to the law ; and," said she : " I would bring you to the same condition, 
and, as such, to be cropped and b]-anded and penitentiariedfor ten years, 
and perhaps for your lifetime." Then I flinched, for I had never been in 
law. I did not know what to say or do. Said 1: " Mrs. Avery, I have 
been in fear and dread all the year, and now, it is the same thing over 
again." 

JNIr. Cooper then spoke up and said they would take the effort of the 
law on me, and sue me for "salt and perjury," and throw me into the 
same condition ; and as such, I would be cropped, branded and peniten- 
tiaried. After this, I began to feel niiserable, and there I sat. Mr. Cooper 
and Mrs. Averj^ and Kizzie, and Lou Chambers, all said they would 
draw on their oaths ; and they said their oaths would be taken in Court ! 



698 

"and," t^aid Mr. Cooper, " we will have a chance after awhile ;" tlien says 
I: " I will withdraw on your oath, but not on viy oath." That is how it 
. was. Then we went to tlie Magistrate, and Mr. Crook did the writing, 
bui it wai^n't right; and then Mr. Cooper wrote it, and as I understood 
it, it w;i,s resting on their oath, Jiot on my oath ; that I would withdraw 
it on the iheb' oaih ; and then I signed it; that is tha way the whole mat- 
ter went. 

Q,. Do you recollect, or do you not recollect, that Mrs. Avery used 
these w(;rds : " I neither beg, buy nor threaten ?" 

A. I do not. 

Q. Did the man who whipped you hold the strap in one hand, or both 
bands ? 

A. They generally, I believe, the whole crowd, tliey whipped with 
their left hand ; at least they all whipped me on the left side. 

Mr. Corbiu. Right-handed, you mean ? 

A. Yes, sir ; they all, in general, whipped me right-handed ; at any 
rate, they whipped me on this side, [indicating the left] ; there wasn't 
nary a Jick struck on the right side. 

Q. Did this man, that took the rope from your neck, strike you with 
both hands, or one ? 

A. I don't think, to give the rden justice, that any of tliem struck me 
with both hands; but, taking the line or rope in one hand, and striking 
as hard as they could with it. 

Re-Direct Examination. 

Q. When this affidavit Avas read to you, what did you mean by this 
language: "According to the evidence now appearing?" 

A. That was those women who swore — -Kizzie and Louisa Cham- 
bers. 

Q. Were they servants in Dr. Avery's house? 

A. Yes, sir; one was cook, and the other was a superintendent, I sup- 
pose, in general; passing and repassing. 

Q. You said, according to their evidence, if that was correct, you were 
mistaken ? 

A. Yes, sir. 

Q. That was what you meant 't 

A. Yes, sir. 

Q. Did you mean to say that they were correct ? 

A. No, sir; 1 told Mrs. Avery, to the very last, (and iMr. Cooper, if he 
is here, he can give the same statement,) that I didn't believe that evi- 
dence was lawful ; but they said that it were, and would be taken in 
Court. Says I, " If their evidence is good, J am done — then I am mis- 
taken." 



< 699 

Q. Do you think you are raistakeu ? 

A. I don't at all thiuk that I am mistaken. 

Q. You still think that Dr. Avery was the man who was Captain that 
night? 

A. I still believe he was one of the men with that party. 

Q. How badly scared were you when they talked ab'uut having you 
cropped, and branded, and put in the Penitentiary for twenty years? 

A- I can't at all state. I was very scared, because I never had been 
in conflict with law ; had never had any diffi^^ulty, any way, in ray life 
in law ; and when they brought these things, I told them I didn't see 
how the law could take that advantage on me ; but yet they said that 
would be the case, notwithstanding. She said there was fourteen got off 
day before yesterday; then I thought they got out by evidence, and I 
concluded then, if such evidence, if others got such evidence, and got 
out of prison, I had to believe that Ku Kluxing, more or less, would 
continue, and I would have to fear as I have been, because whereby I 
was alarmed and deeply interested. 

TESTIMONY OF THOMAS MOREHEAD. 

Thomas Morehead, a witness for the prosecution, being duly sworn, 
testified as follows : 

Direct Examination by Mr. Corhin. 

Q. Where do you live ? 

A. In York Couuty, sir. 

Q. Do you live there now ? 

A. I have been left there since the 25th of February past. 

Q. How long did you live there before that time ? 

A. I have been living there for five years now. 

Q. Wliat part of York County? 

A. Rock Hill, eastern part of the County. 

Q. Were you there during the election of 1868 ':* 

A. Yes, sir ; 1 was there. 

Q. Attend the election ? 

A. Yes, sir. 

Q. State whether the Democrats, on that day of election, crowded the 
polls or not ? 

A. Yes, sir; the polls were very much crowded. I was there in the 
morning, and until the closing of the pedis in the afternoon. 

Q. Whether the colored peopile were obstructed ? 

A. They were crowded away, a great many were. 

Q. Who was a prominent man, standing around the polls, in the way? 



700 

A. Well, sir, there was Dr. Avery was the first man ; the firi^t man that 
I met that Diorniug wlien I came up to vote. I had registered in Colum- 
bia, and thought I couhl go there and vote on my oath ; but they ob- 
jected to luy vote, and then I went off. The window was a narrow one, 
and the white men ju:>fc ^jtood in a ring right around the ■window. Dr. 
Avery, he was stanrJiiig right with liis liand on the window, and tested 
every vote that wa.-< given. Voting was a new thin^ to the colored 
people, and they were nearly afraid anyhow to exercise the privilege of 
voting, and this crowd being there, it prevented a great many from voting 
at that election. 

Q. Why did you move from Ptock Hill ? 

A. By threats of the Ku Klux. 

Q. Tell us all about that? 

A. I was Captain of company H. 

Q. Militia company ? 

A. Yes, sir; militia corapaiiy ; and I have always tried to conduct 
myself and my company, that they could get no catch on us, or bring us 
up for any outrages or anything. Shortly after the election, Fall before 
last, there occurred a racket in Rock Hill; and some white one refused 
to be arrested by the civil authorities. 

Q. Who refused ? 

A. A party who had stabbed a member of the company and shot him, 
up there. After they refused to be arrested, and armed themselves', and 
went off from there leaving threats to the Trial Justice if he sent any 
force of militia, or any force whatever, they intended to shoot as long as 
they had balls to shoot, and wouldn.'t be arrested and be brought before 
a damned nigger Trial Justice ; that was Squire Davis. After they made 
their escape, Squire Davis then asked me to assist him in making the ar- 
rests with a small ion-e of militia. I went along Avith them, and we met 
the party. They had been to Squire Crook's and got the business fixed 
there. Then we left them alone and came back to Rock Hill. Early 
the next morning, Charley Cobb, he met me, and says : " If we had 
known last night which way you was going, we^would have given you a 
hell of a battle, in the road." I told him I was prepared ; and he says, 
" well, we will give you hell anyhow, in the rounds." Then after that, they 
sent a dispatch to the Governor here, about the niggers tur-iing up the 
country generally, running women and children out of the houses, 
and they were all frightened; and I went there to Rock Hill that 
day, with twelve men, but I didn't see any alarm. Governor Scott 
called in the arms, and they were given up on the Governor's orders, 
and put in the Depot ; and a few days after that, there was a notice 
put up. It had Squire Davis' name and my name at the head, and 
Denny S. Steele's, and Jim Bynam's. Bynam was a white man, a 



701 

nieniber of our League — he was Secretary ; and I suppose they found 
it out. 

Q. Have you that paper? 

A. No, sir ; I didu't get that one ; that paper was torn down ; I didn't 
see that paper — the first one ; the last one they put up, I saw it. 

Q. Have you the paper ? 

A. No, sir; I haven't got it. 

Q. What has become of it ? 

A. Iredell Jones tore it down ; after it seemed to be going to raise a 
good deal of excitement there, he tore it down, and then begged me to 
advise the colored people to be peaceable and quiet, and not make any 
threats, and not to get excited about tluit, and he would insure me that 
he would keep the whites right. 

Q. What did that paper say ? 

A. Tiiey marked, on to{) of the paper, as well as I can recollect, " K. 
K. K." No name signed to it ; and, following on the face of it, was, 
"Oh, ye blind and foolish parties, stop! stop! aurl study before you fur- 
ther go !" and, at the bottom of it, they had a grave and coffin, and straps 
down in the coffin, and the lid laid off one side. It says, " We won't 
stop ; wo have guns and bayonets ; we have bowie-knives and pistols ; 
we have held out our hand to you, and you won't accept it ; w-e have of- 
fered, and you won't accept ; and if you won't now, stop b3fore you fur- 
ther go, and listen and sympathize with us." Then he says, " Your 
voices shall bo shut up in a lonesome valley, where they will never be 
heard no more." I don't remember, it all. There was about twenty or 
thirty pages of it. A long concern. Jones tore it down, and said he 
expected the Ku Klux would come after him, ^it he would just as soon 
die one way as another — the damned niggers would kill him any h<jw. 

Q. Were the colored people very much scared up in Rock Hill ? 

A. You can't find a dozen men, I don't suppose, in that precinct there, 
that staid in the house at night. 

Q. Did you have to lay out yourself? 

A. I laid out for about four weeks. 

Q. Were the colored people being whipped at night by the Ku Klux 
there ? 

A. They had been in the upper edge of York, and just on the eastern 
side of York, and around on the western side, back behind York. I had 
several invitations to get away from there, and I was compelled to leave. 

Q. What do you know' about taking the guns out of the depot ? 

A. The first guns were taken out on the 19th of February, by un- 
known parties. After the first ones were taken, I began to get a little 
dubious. I didn't know but what I might be killed some night, or 
might be shot coming home. I live about a mile from Rock Hill. 



702 

Q. You left Rock Hill through fear of the Ku Klux? 

A. Ye?, sir, that was my fear. 

Q. Did you kuow Jim Williams ? 

A. I kuew him, sir. 

Q. He was a captain of a company ? 

A. Yes, sir. 

Q. Was he killed before, or after you left ? 

A. He wtts killed the next Monday night after I left. 

Cross- Examination by Mr. McMaster. 

Q. Where do you live now ? 

A. In Columbia, sir. 

Q,. What is your business? 

A. Carpenter by trade. 

Q. Whom do you work with ? 

A. I am now in the State House ; one of the attachees of the House. 

Q. What time was this election, when you say Avery, and a number 
of others, were there. 

A. At all the elections. 

Q. ]Mr. Avery is the man who always stands up at the window ? 

A. Yes, sir; he is generally the man. 

Q. Which got the majority, the Radical party or the Democratic 
party ? 

A. Well, it was said that the Radical party did. I don't know. 

Q. Were you there in 1870 ? 

A. I was there in 187(|p 

Q. Which got the majority then ? 

A. Well, the Republican pai'ty, I think, they said did. 

Q,. Who were the parties you went to arrest ? 

A. AVorkman and Steele. 

Q. Didn't you go and arrest somebody else? 

A. I didn't go to arrest him ; but I went to assist. 

Q. Who else did you go to arrest with a party ? 

A. Dr. Avery. 

Q. You arrested him ? 

A. No, sir; I did not. 

Q. Did he go back with you ? 

A. Of course, he went back to the Magistrate. 

Q. Did he show any resistance? 

A. None at all. 

Q,. What was the time the colored people began to get scared the first 
time ? 



703 

A. After tliey had broken open the depot. 

Q. That is the time they began to feel very uneasy, and you thought ; 
of leaving ? 

A. Oh, I had been uneasy a long time before that. 

Q. How loDg? 

A. I don't know how long. Ever since shortly after the election 
there was general threats all the time. 

Q. Was there any raiding done in that part of Rock Hill before this 
raid when they took the guns? 

A. None as I sa\v. 

Q. You never heard of any ? 

A. I heard of them above there. 

Q,. In the western part of the County ? 

A. Yes, sir. 

Q,. But there had been none at Rock Hill? What was the first raid 
at Rock Hill? 

A. This raid on the gans ? 

Q. Tiiere w'as no raid, except that, the whole time you lived 
there ? 

A. I didn't live in Rock Hill then ; they Avere raiding around through 
the country. 

Q. Yes ; I know that ; but was there any raiding except that ? 

A. I don't know, sir. 

lie- Direct J^xaminatlon. 

Q. You say there was raiding around the country ? 
A. Yes, sir. 

Q. When did it commence ? 

A. They commenced along before Christmas ; I don't know, sir, what 
time they were raiding. 

TESTUrONY OF GOVERNOR FEWELL. 

Governor Fewell, a witness for the prosecution, being duly sworn, tes- 
tified as follows : 

Direct Examination by ]\fr. Corbin. 

Q. Where do you live ? 

A. I live in Ebenezer, York County, on Captain Ferriss' planta- 
tion. 

Q. How long have you lived there ? 

A. Three years. 

Q. Are you a Republican or a Democrat ? 



704 

A. I am a Republican, sir. 

Q. Now, tell us wliether the Ku Klux ever visited you, and when 
first? 

A. I forget how long it is, but they visited me. 

Q. Was it before or after the election in 1868 ? 

A. Before, sir ; but I can't give you no date of the time. 

Q. Now tell us about it ? 

A. Well, sir, they shot all in my house, and knocked doAvn ray door, 
and aimed to come in, and I knocked them down as they came. There 
was a great crowd ; I can't tell you how many ; it was sort of dark. 
They came there and called for a boy Captain Ferris had, and I told 
them, if they didn't leave my door, I would give them a load of shot. 
They went back and came again, and throwed down my door, and aimed 
to come in ; and, after I knocked them down so fast, they went around 
my huu^e and shot it ; and, after Captain Ferris fchot himself, they left. 

Q. Whom did you knock down ? 

A. I cannot tell you who it was, it was that dark. 

Q. Did you recognize any one? 

A. No, sir ; I couldn't recognize any one that I knocked down, but 
I knowed a man at my house. 

Q. Whom did you know ? 

A. I knowed Dr. Avery, James Alston — 

Q. Is this the Dr. Avery? 

A. Where is he ? — [looking at the prisoner]. Yes, sir ; he is the 
very man. 

Q. You say Capt. Ferris fired? 

A. Yes, sir ; he shot twice from his house. They shot through his 
room. They knowed where he staid. 

Q. Did they liit him ? 

A. No, sir ; they didn't hit him. If he had been in his bed though 
they would have killed him. 

Q. Did he hit any of them ? 

A. I don't know whether he did or not ; there was one shot; I don't 
know whether he done it or not. 

Q. Who was shot ? 

A. Gus Coulter. 

Q,. What did they come and visit Mr. Ferris and you for ? 

A. I don't know ; I reckon they came on Ferris' boy, Morris, be- 
cause he was a strong Radical. 

Q. What did they do? 

A. They tried to kill me. 

Q. How did they try to kill you ? 

A. Tried to do it by shooting; they shot in ray house. 



705 

Q. Had they disguises on ? 

A. Yes, sir ; I could see them by the flash of the pistols ; they had 
something red across here [head and shoulders]. 
Q. Have they been to see you since ? 
A. Never came to see me any more. 
Q,. Have you been lying out to keep away from them ? 
A. Yes, sir ; I took the pine for it. 
Q, How long did you lay out ? 
A. More than a month. 

Q. Did the rest of the colored people lay out around there ? 
A. Yes, sir ; they laid out in the woods to save their lives. 
Q. How far do you live from Rock Hill ? 
A. Three miles off. 

Cross- Examination by Mr. McMaster. 

Q,. Did youfiud out who was there that night? 

A. Well, I found out it was nobody but Mr. Avery and Parker 
Wilson. 

Q. Did you find it out that night, or afterwards ? 

A. The next day I was told ; and I knew his voice myself, that night. 
I told Captain Ferris it was nobody but Gaines Alston, and Parker Wil- 
son, and Mr. Avery. I knew the voices, and I accused him of being 
with them ; and after I accused him he told me the whole history. 

Q. Who told you ? 

A. Sam Lowry, who belongs to Dr. Lowry. 

Q. How did he know ? 

A. He said they went for him to go, and he found out from them. I 
was certain it was them that niglit; but I accused him of being along. 

Q. How many colored people were along that night? 

A. I don't know anybody else. 

Q. What did they say wlien they first came up there — that they were 
coming for you ? 

A. Didn't say that they were coming for me — they was coming for 
Morris, and called on me first. 

Q,. Then what did they do ? 

A. They went a piece away and came back, and throwed the door off 
their hinges and aimed to come in ; and I took my little short fire shovel 
and knocked them down ; then they went all around the house and 
commenced shooting. 

Q. They were seeking for Morris? 

A. Yes, sir. 

45 



Be- Direct , Examination, 

Q. Who is INIorrig ? 

A. Morris Ferris, a colored man. 

Q,. A voter and Republican? 

A. Yes, sir ; a Republicn. 

Q. Did he vote at the election ? 

A. Yes, sir. 

He- Cross Examination, 

Q. This was in 1868 — three years ago ? 

A. I don't know how long it has been, but it has been a good while. 

Q. You stated it was before the election in 18t>8 ? 

A. It was before the election. 

lie-Direct Examination . 

Q. Had you voted or not? 

A. I hadn't voted. I went down a short time after that and voted. 
The prosecution rested. 

The defendant's witnesses, except Dr. Talley, a professional witness, 
were sexit from the room. 

TESTIMONY OF REV. R. E. C-DOPER. 

K. E. Cooper, a witness for the defense, being duly sv;(unj testified as 
follows : 

Direct Examination by Mr. Wilson. 

Q. Where do you reside ? 

A. In Ebenezer, York County. 

Q,. What is your occupation ? 

A. I am a Presbyterian minister. 

Q. What congregations have you charge of? 

A. The congregations of Ehenezer and Rock IliH. 

Q. Do you know this man, Postle ? 

A. I do. 

Q. Did )'ou meet him and have a conversation with him at any time 
after this occurrence that be baa described of his having been whipped ? 

A. Yes, sir ; on Monday after the Friday he said it occurred, 

Q. What did he say ? 

A. Well, he stated, in substance, the fact that, on Friday night pre- 
vious, be had been visited by a number of disguised gentlemen, and that 



707 

tliey had sorely afflicted him, just as he stated to-day on the staud, and 
asked me, as a supposed friend, (and as such I was — at least, I had no 
unkind feelings towards him,) he asked nie for counsel and advice ; he 
asked me if I supposed there would be any further depredations com- 
mitted upon him. I told him I thought not, from the fact that, so far 
as I knew him, he was a peaceable citizen. I even asked him if he knew 
any person who was present? He told me he didn't kjiow a single per- 
son. I then ayked him the question if he had any reason for passing an 
opinion as to the causes which led to this afiiictiou? He stated to me 
that the only thing he could remember was the substance of a sermon, to 
which he referred this morning ; that in that sermon, which he preached 
a short time previous to this affliction, he said to his colored people, in 
view of the terrible state of the country, that they (the colored people) 
were like the moles and the bats — they could do their work by night ; 
they could use the iijcendiary's torch ; and they could inflict great suffer- 
ing and punishment upon the white people. But, he said, he counseled 
them against such a course as that. And then I asked him again the 
question if he had any knowledge at all of the person? He told' me he 
had not ; if he swore to any person at all, he would swear to a lie. And 
that was the substance of the first interview I ever had with the gentle- 
man. 

Q. "Were you present at the interview between himself and Mrs. 
Avery ? 

A. I was. 

Q. State what occurred at that interview ? 

A. Shall I state the whole transaction? 

Q. You may state the whole transaction ? 

A. I would be very glad of that privilege, inasmuch as the statemen'ts 
of the old man are substantially true, but incorrect in four particu- 
lars. 

Q. Give us the whole of it ? 

A. The night of the- day on which Mrs. Avery received the charges 
against Dr. Avery, being her pastor and friend in affection, she came 
to my house, and, in conversation with my wife and others, she stated 
to us what the charges were, and who consulted as to what course 
should be pursued in regard to the matter. I don't remember whether 
]\Irs. Avei-y asked, isie to go, or whether I volunteered my services. 
Being a frioid, and being a pastor, and believing, as I did, that Dr. 
Avery was innocent of these specific charges, I felt at liberty to go 
and see Posile, because he told me, himsflf, he had never sworn against 
him. Then I went and saw Postle, as he stated here to-dav. I could not 
reach the point Avhere he was picking cotton at the time, being on my 
horse and a boggy ravine passing between us, and I called him to me, 



708 

and he has stated, in substance, correctly, the whole interview, with some 
few exceptions, that I may specify. He says that I said to him he must 
come and see ]\Irs. Avery. I never used that language, and, gentlemen, 
I aril uot pleading my own case, but I am stating to you what are facts. I 
didn't say he must come, but I said : " You ought to come, under all cir- 
cumstances, because you told me, last spring, that you w^ould not swear 
against Dr. Avery, aud you have already told me, this evening, that you 
have uot; then, I see no difficulty in my way in approaching you, and I 
see no difficulty in your way of coming." He has stated, furthermore, 
in this connection, that I used a threat, which, gentlemen, I never used. 
It was no purpose of mine to threaten the old negro ; I had nothing 
against him. But, I said to him, " Now, Postle, you have told me, 
six months ago, and this evening, that you had uot sworn against 
Dr. Avery, and you cannot swear against him now. I simply suppose 
that you, or some person in your behalf, have sworn against Dr. Avery. 
You cannot swear it now ; then, why not come an(^ hear what Mrs. Avery 
has to say; listen to what evidence she can produce in exculpation of 
Dr. Avery from this specific crime." And I made this remark to him — 
that he was putting himself in a very grave altitude; he was assuming a 
very gi-ave responsibility, inasmuch as he had stated to me that he could 
not swear to Dr. Avery, and we had witnesses to prove Dr. Avery was 
uot there; because, if he failed to establish his point, my conception of 
the law was, that Dr. Avery, or his friends, could have redress in a legal 
manner. I stated that to him, and that was the threat to which he re- 
ferred. I did not conceive it a threat. I simply stated what I conceived 
to be the law. After some further conversation, he consented to come, 
and, as he stated correctly, it was my regular night for Divine service at 
my Rock Hill charge. I then left him, and he promised to come the 
next morning. The next morning, I had professional duties to discharge, 
and had already ridden some six or eight miles, and was then going 
twelve miles further, when that old man met me in the public road. 

Mr. Chamberlain. What old man ? 

A. A. Postle. He met me in the road, and I simply bowed to him in 
passing, intending to go directly on a distance of ll' miles in the discharge 
of what I conceived to be a professional duty. His first remark was: 
" Well, Mr. Cooper, I have come to see you this morning, and to say 
that I have never put Dr. Avery in prison, and I can't take him out." 
My reply to him was simply, " Postle, you promised me to go yesterday 
evening, and it will do no harm, simply to go to see Mrs. Avery ; there is 
Mrs. Avery, in the door, go and see her." I did not intend to go there. 
It was my intention not to be there, but he says to me — here is the point 
where the old man really mistakes — he says, " that I said he must go." 
I didnit say so. I simply said to him, " there is no difficulty in going 



709 

on, inasmuch as he had gone thus far." He says, " I won't put my foot in 
the yard, unless you come ;" and, without making any further rei)ly, I 
just wheeled and said, " come on." Mrs. Avery irivited us in her cham- 
ber, or sitting room, and commenced the conversation by saying, " Mr. 
Postle, I have sent for you in order to lay some facts before you winch 
are in my possession. As the wife of Dr. Avery, my testimony will be 
worth little or nothing in Court ; but my testimony to you is valid, if you 
will believe me what I say. I am willing to testify, upon my oath," and 
rising to the importance of the occasion, she remarked " if my hopes of 
salvation depended upon the statement which I am now, about to make 
to you, I would still say that Dr. Avery, ray husband, was in my cliam- 
ber the entire night." And, gentlemen, I conceive that to be the truth. 
I know Mrs. Avery. 

Mr. McMaster. Kever mind that. 

The Witness. Then Po.stle re])iied to that statement by again bringing 
up the groat difficulty in pn)ving the point. He even went so far as to 
say that the husband of any wife might, dui'ing the night, retire from 
her chamber without her knowledge. Mrs. Avery pressed the point 
gently, saying to him, " Are you willing to take my word?" He didn't 
say whetlier he would or not. Then siie summoned old aunt Kizzy and 
Lou in the room, and again, at this point — I beg pardon, I didn't intend 
to say anything against the old man — but, at this point, Mrs. Avery 
asked these colored women to make their statement, and old aunt Kizzy, 
in her own peculiar dialect, remarked, " Mr. Postle, Mass Ed was home 
that night, and I am willing to sweaj it on a stack of Bibles as high as 
the sky." And Mrs. Avery turned to Lou, the other servant, and asked 
her to make her statement. She said that Dr. Avery was in his cham- 
ber that entire night. She knew it by certain circumstances connected 
with the family, namely, sickness connected with the family. She slept 
in the nursery, adjoining the chamber, that entire night, and knew Dr. 
Avery was there. At this ])oint I brought in a remark, the sub- 
stance of which the old man has repeated here this evening. 
I told him I saw no difFiculty in the way (jf his giving an 
affidavit. Tiuit Mr. Avery, as she herself had stated, did not wish 
to secure this affidavit in t)rder to liberate Dr. Avery from a trial 
in this Court, but the purpose for which she wanted it, was to re- 
lease him from confinement in York Jail. So far from spying anything 
at all about 20 years imprisonment in the Penitentiaiy, having his ears 
cut off, and himself branded, not one single word was said al^out that. 
It is true, we referred to the penalty of perjury — Jiothing said of 
" assault," as the old man said ; but we remarked that he assumed a 
very grave position, inasmuch as he had said he couldn't swear against 
Dr. Avery, and wc had witnesses to prove that Dr. Avery was at home 



710 

that night. Mrs. Avery made tliis remark: " N(iw, Postle, I neither 
threaten, I neither beg, nor do I bily ; but I ask you in tlie name of jus- 
tice, if you are satisfied witli tiiis evidence to give us you affidavit ;""' and 
the old negro said he would do it. I ordered my horse and took him 
with me. During tlie ride down to Rock Hill, I met Mr. Crooiv and 
asked Mr. Crook if it was competent for him to wjite out an affidavit, he 
not being a Magistrate in Rock Hill. He said it was. I told him I 
wanted him to prepai'e an affidavit for this old colored gentleman. Mr. 
Crook attempted to write the affidavit ; a>j(l there, again, the old man 
has misrepresented — I don't say intentionally. I am willing to throw 
the grab of chtii'ity around what he has stated. IMr. Crixik attempted 
to write an affidavit, and I saw that the syntax and i)ro5od3% both, were 
verv iucorrect, and I didn't want such an affidavit to go before the au- 
thorities of these United States ; and lie told me he had a diffi- 
culty in writing it. I suggested to him the ph.'-aseology, and 
after writing a few words more, he says: "Take this paper, Mr. 
Cooper, and write the affidavit, and I will sign it." I did so, at 
his request. I told him L didn't know much about law, but I did 
know how to write an English sentence — and that was the reason I 
wrote the affidavit. That is the substance of the transaction, almost ver- 
hatim. On coming back from the Magistrate's, Postlc told me that he 
had gone to Colonel JMerrill and told Colonel Merrill lie supposed Dr. 
Averv was connected with the affiur, and Colonel Merrill asked him to 
swear to it. He told him he wouldn't do it; but he told me, then, he 
was satisfied that Dr. Avery had no connection with the matter — he was 
satisfied upon the statement of these two women. 

Q. Did you read the affidavit to him? 

A 1 read it to him, carefully, and explained every word, and he asked 
the question, " if he was swearing upon his own direct knowledge or 
upon the testimony of these witnesses?" AVe told him the affidavit was 
basi'd upon the testimony of these witnesses, as the langmige there clearly 
indicates. 

Q,. You stated that you met Postlc on Monday succeeding the Friday 
night upon v,li:ch he was whipped. Do you know anything about the 
condition of Dr. Avery's family that Friday night? 

A. Yes, sir ; [ know his little daughter was sick at the time. 

Cro.ss-E.ra mi nation hy Mr. Corbin- 

Q. What dill you say you wanted this atfiiiavit for? 

A. T',' liberate Dr. Avery from Yorkville Jail. 

Q,. How did you expect this was going to do it? 

A. 1 thouudit if the Government knew the man was innocent it would 



711 

release him. I didn't suppose the GoveniiDctit wanted to persecute one 
of its subjects. 

Q,. I uiiderstaud you to say that you did tell Postle something about 
tlic consequences of perjury in the conversation with Mrs. Avery? 

A. Yes, sir; we stated this fact ju.st as I have already stated to the 
Court and jury, that Postle had stated to me as an individual, and to us 
collectively, that he had not sworn and could not swear, but if he per- 
sisted in not giving this affi.lavit when he had every evidence to believe 
the charges were false, that then he would be testifying to something that 
was incorrect, and the crime of a perjured person was heavy. 

Q,. Wiiatdid you tel! hit.i were the conseciuences of perjury? 

A. I didn't state particularly, for I don't know now. 

Q. Didn't you tell him that a man who committed perjuiy might have 
to go to the Penitentiary? 

A. No, sii'; I did not. ; I never told that; neither did Mrs. Avery 
we told liini it was a very lieavy responsibility to commit perjury. ' 

Q. What did you say anything about it for? 

A. I wanted to get the old negro to tell v*diat I believed to be the 
truth. 

Q,. I)i<l lie propose to tell anything but the truth? 

A. No. 

Q. Then why did you talk to him about perjury? 

A. Because same i)erson had sworn — I presume they had sworn — that 
Dr. Avery committed these charges, and we knew them to be incorrect, 
and if he testified to that crime he would lay hijnself, I thought, liable to 
the law, and if I knew anything about law, I believe it is true now. 

Q,. How did you know the, charges against Avery were incorrect? 

A. 1 know it, sir, upon the testimony of Mis. Avery, a lady of un- 
compromising veracity. 

Q. And that is the only way ? 

A; Yes, sii' ; I believe it just as implicitly as if I saw it, because I know 
Mrs. Avery is a truthful lady. 

Q. You are sure you didn't tell Postle what, in your judgment, would 
be the consequence of committing perjury? 

A. No, sir; I did not; neither did Ni'rs. Avery. 

Q. But you did tell him something about the consequences of perjury ? 

A. I stated the general consequences of perjury without I'eference to an 
individual. 

Q. What did you say were the general consequences of perjury? 

A. I said it was a very heavy I'espousibility he was assuming in the 
event that he committed perjury. 

Q. What did Mrs. Avery say were the consequences of perjury ? 



712 

A. There was something said about the general consequences, but not 
as to the specific individual. 

Q. Mrs. Avery made that remark ? 

A. I don't remember certainly that she did. 

Q. Do you remember whether she did or not? 

A. I am only certain of this tact, ^Ir. Corbin, that Mrs. Avery made 
no threat upon the old negro. That I am certain of. I have no sort of 
hesitation in stating tliat, and I am willing to test my honor as a Piesby- 
terian minister on that point, and I claiui to be a trutliful man. If I was 
speaking to those wIjo knew my antecedents, you wouldn't question it. 

Q. I am simply trying to find out what Mrs. Avery said, as well as what 
you said. Did Mrs. Avery say anything about the general consequences 
of perjury to Postle? 

A. I think I have answered that question already. 

Q. Answer it again, if you please ? 

A. There was something said — mark my words — about the general 
consequences of perjury in the abstract, but there was no direct threat 
made upon him as an individual. Am I not correct in drawing that dis- 
tinction. 

The Court. No, you don't say who said it. 

A. I don't remember certainly whether Mrs. Avery said it or whether 
I said it. 

Q. You remember it was said? 

A. Yes, sir. 

Q. You knew the Ku Klux were riding about there? 

A. I did not, only from hearsay; I am not a Ku Klux. 

Q. I didn't ask you that question. Did you hear of it? 

Y. Yes, sir. 

Q. Very common report, wasn't it? 

A. A very general rumor through the country. A very common re- 
port of house burnings, too, at the same time. 

Q. But that is not what I asked you. 

A. Yes; I say there was very common reports of Ku Kluxing. 

Q. When did the first Ku Klux raiding reach your ears, last fall and 
winter? 

A. Well, I can't answer that question conscientiously, because I don't 
know. It was a general rumor, I suppose, about the time they occurred. 

Q,. Can y(ju fix the time? 

A. I cannot. I think it was some time towards — There was no Ku 
Klux raiding around Rock Hill, if that was the point. 

Q. But about the country ? 

A. There wns none around the country, that I have heard of, nearer 
than around Yorkvillc. 



713 

Q. Didn't you hear of the raiding- in the vicinity of Ebenczer, last 
fall and winter ? 

A. Well, now, specify yonr question, and I will answer it. I heard 
this of the organization : Some persons passed through Ehenizer, but 
there was no depredations in Ebenezer. That was some time during last 
fall. 

Q. Before or after the election ? 

A. I paid no attention to it I cannot specify the time. 

Q. Didn't it interest you ? 

A. Not at all, beyond my simple interest in the conimnnity 

Q. Wasn't the fact of people being whipped and scourged at night a 
matter of interest to you ? 

A. Oh, yes ; as a matter of course it was. 

Q. Still, you don't recollect when it occurred ? 

A. I don't recollect the time. Some time last year. 

Q. Did you ever preach against this Ku Kkix business ? 

A. No, sir; I wasn't commissioned to preach against those tilings ; I 
don't preach political sermons at all. 

Q. You regard this Ku Klux raiding on the colored people a p^ditical 
matter do you ? 

A. Well, I don't know ; I always — my impression about it was simply 
an organization in opposition to the Union League. 

Q. But I am asking you about this raiding, and whipping, and pound- 
ing people to death ; you regarded that a political niatltr, and, tiicrefore, 
}'ou didn't preach against it? 

A. I never considered, sir, that I had any right to preach against raids 
of that kind ; I have no colored people belonging to my congregation at 
all. 

Q. Your congregation is composed mostly of white people? 

A. I preach every Sabbath evening to colored people in the summer 
time, and I have a few colored membei*s. 

Q,. You never thought it your duty to speak against these outrages? 

A. I didu't suppose there were any members of my congregaiiuu acting 
in that way ; I had a specific charge to a specific people. 

Q. Did you ever preach to the colored people about it? 

A. I never did ; never preached to them about house burnings, nor the 
white people about Ku Kluxing. 

Q. Never preach against crimes of any kind ? 

A. Yes, sir ; my idea is to preach Christ and him crucified, and I try 
to stick to my text; tluit is my commission. 

Q. You didii't think that involved the bodies and souls of your con- 
gregation ? 

A. No, sir; because I didn't suppose any of my congregation belonged 



714 

to it; if I ]ia;l liad any reason to believe that they ditl, I supjv-.-e I 
would have (lone ir, because I am pretty fearless. 

Q. Did you make a statement of what occurred between Postle, your- 
self and :\Ir^ Avery to Col. Merrill, at Yorkville? 

A. Yq<, sir; I ma !e a statement in regard to some point. 

Q. Did (,'olonel Merrill tell ynu that Po.stle had stated to him, in i<ub- 
subsLMnre, what he stated here in Court in regard to this afiklavit? 

A. Yes, .<ir. 

(2- Vriiat re|>ly did you make? 

A. I made no reply in words; I simply nuide an exclamation of amaze- 
ment at the :;taiement of tliit^ old man, because I knew it wasn't 
true. 

Q,. Did yon nut ?ay to Colonel ?>[e!'rill that nothing was said to Postle 
ab(iUt tlie penalty of perjury ? 

A. 1 stated to Colonel Merrill, so far as my reollection goes, that no 
threats were made to Postle, directly. 

Q,. Didn't you i-ay to him that yon said nothing to Postle about the 
conseqneoces of committing peijury? 

A. No, :^ir ; I have no recollection of making any such state- 
ment. 

Q. Will you say positively whether you did or not? 

A. I tell you, according to the best of my recollection, that I made 
no such statement. I remember, simply, to have expressed utter sur- 
prise. 

Q. Did you not deny to Colonel rvlerrill tliat you had named to Postle 
any of the consequences of committing perjury? 

A. I have n(> recollection of Colonel Merrill asking me that question. 
Pie simply told me what Postle had said to him, and I, knowing that to 
be false, simply made an exclamation of surprise. 

Q. You d^n't answer the question directly, whether you did or did not 
deny ir? 

A. Well, I have stated to you now what I said to Colonel INferrill, and 
what he said to )7io, and you can form your own opinion as to whether I 
denied or not. 

Q. How did tliat con'i'ersation commence with Colonel Merrill? 

A. It occurred, the oOth, if I am not mistaken I think it occurred 
the oO(h of Novcuiber. 1 think, after Colonel Merrill got through his 
dinner, which was quartei-past six, by my watch, he came in the room, 
and treated me very courteously, which I have stated in this card, which 
I have publisiud, and opened the conversation by saying, as well as I 
can remember his words, " Mr. Cooper, I suppose, sir, you are aware of 
the grounds upon which you were arrested?" To which I replied that I 
was not even aware of the fact of my being arrested. Mr. Russell, the 



715 

United States Marshal, stated to me, inos-t positively, that he had no war- 
rant for me ; that it was tjimply a request from Colonel Merrill that I 
should c 'Hie there that night. 

Q. Did Coh)iicl jMerrilJ n^k you to make a statement? 

A. I siiid I desired to iuake a statenieut, and Colonel Merrill replied 
to that by interru[iting nie, and saying: "Now, Mr. Coo[)er, I want to 
say to you, before you make any statement, that any cotilk-sion ti)at you 
may make will be used against y(;U in Court." To which I repli(;d : " That 
I had no confessions to make, nor truth to suppress, but I simply wanted 
to make a statement witii regard to my interview with Postle." 

Q. I propose to Hsk you, again— because you have not answered, di- 
rectly, this (juestion — wiiether you liid nr.t say to Colonel j^tlenill that 
you had never naniod to Postle tlie coustqueiufes of committing per- 

A. We] 1, Mr. Cor bin, I feel at a lo:-s ; 1 would like to an^^wer that 
question — 

Mr. (Jorbin. \V\\l the Court please as;k the question atulgetan answer, 
I cannot? 

A. I have told the j)rec!se words that passed, and allowed you to ])ut 
your o\vii construction on then). 

Mr. Corbin. I don't think that is an answer. 

A. li' that is not an answer, I cannot give it ; for I don't know how 
else to answer it. 

Q. WhH, you say that this did not ))ass? 

The Witness. Put your question again, and I will answer it on my 
honor as a mini.->Ler. 

Mr. Corbin. I would rather have your oath. 

The Witness. I know I am on oath, but 1 consider my responsibility 
as a minister, and mv accountability to God, as binding as my oath iu 
law. 

Q,. Now, sir, did you not tell Col. Men-ill. positively, that you had tuo 
jiaimd to Postle the consequences of perjury? 

A. 1 have told you my words. 

The Court. You can say yes or no to that. 

A. With all due respect to the Judge, I will just say to him that, with 
the construction that I put upon it, I did not say so ; I simply expressed 
surpiise, when Col. Merrill told me what E'ostle had told him, because I 
knew it was not tru(>. 

Q. You intended to deny that you made any s-tatement to Postle ? 

A. No threat, now. 

Q. No ; I didn't ask you that. I want to know if you mean to be 
understood as positively denying to Col. Merrill that you had named the 
consequences of perjury to Postle? 



716 

A. Well, I can't remember precisely all that passed on that point. I 
simply ren:iembcr the fact of Gol. Merrill stating to me what Pestle had 
stated to him, and I expressed surprise, and, in that exprcs.->ion of sur- 
prise, I intended, as a matter of course, to deny the fact of having made 
iinj threat upon him as an individual. 

The Couit. You are not asked about threats. Did you make, or 
not, the statement to Col. Merrill that you had not stated the consequences 
of perjury to this man ? Now, you can answer that, certainly. 

A. I have no recolleqtiou of making that statement to Col. Merrill. 

The Court. You have been a quarter of an hour stating tliat fact. 

The Court adjourned until 7 o'clock, P. M. 



EVENING SESSION. 

TESTIMONY OF LOUISA CHAMBERS. 

Louisa Chambers, a witness for the defense, being duly sworn, testified 
as follows : 

Direct Exammalion hy Mr. WiUon. 

Q,. Wliere do you live ? 

A. Near Rock Hill, in York County. I am u nurse at Dr. Avery's, 
and help to keep house. 

Q,. Where were you the night of this raid upon Sam Sturgis and 
Postle ? 

A. I was in Dr. Avery's house, sir. 

Q. Where do you usually sleep? 

A. Usually sleep right opposite his door, a piece from his house, but 
that night I was in the house^ because his youngest child, the baby, what 
I nurse, was sick. 

Q. Do you know where Dr. Avery was that night? 

A. Yes, sir; he was right there in the house. He went to bed betwixt 
9 and 10 o'clock, and remained there the whole night. I was up and 
down at all times of night with the child, and I was obliged to go to his 
bedside to get the child, and he was in his bed all night long. 

Q. When did yon hea: or" this raid up)n S.im Siurgis and Pos^.le? 

A. The next morning. 

Q. What night did it occur ? 

A. On Friday night. 

Q,. Whom did you first hear it from ? 

A. Nancy Dunlap, and my sister, Sarah Chambers, came up shortly 
ftfter and tuld me. 



717 

Q. Is it Dr. Avery's habit to be away from hoine at night ? 

A. No, sir; it is not his habit to be aAvay from home at uight. 

Q. How loner have you beeu living there ? 

A. For two years. 

Q. How often has lie been absent from home during those two years? 

A. I never mis.>ied him but two nights. 

Q. Were you present at an interview between Postle and ]\Irs. Avery? 

A. Yes, sir. 

Q. State your recollection of what was said by Mrs. Avery and by 
Postle. 

A. Well, Mrs. Avery just simply asked him for satisfaction about this 
thing. She told him she neither begged, nor persuaded him, nor hired 
him. He said Mr. Avery did not whip him. 

Q Who were present on that occasion ? 

A. Mrs. Avery, Aunt Kizzy, and Mr. Cooper, and Mr. Avery's oldest 
son, Ed. 

Q. Did yon hear any threats made to Postle? 

A. No, sir; there was not a threat made that day, for I was there 
present, and I heard nary threat made that day against him. 

Cross- E.i-amination by Mr. Corh'in. 

Q,. How old are you ? , 

A. Twenty-one. 

Q,. WJiat wan the niatter with tliB child that night ? 
A. It was teething that time. 
Q. How old is the child? 

A. It is two years old and two or three months, I think. 
Q. Do you reme'uber any other time when the child was sick? 
A. Yes, sir; not so powerful long before — a month or so before. 
Q,. Did you attend to it tliat night ? 

A. Yes, sir ; every tinie the children was sick, I was in the room. 
Q,. How many nights were you in the room, that time ? 
A. Two nights. 

Q. Did Dr. Avery get up that night at all ? 
A. No, sir ; for his wife and I g:)t up and waited on the child. 
Q. What month was that ? 
A. It was in March. 

Q. What day of the week was the first uight you sat uj) with the 
child, the time Postle was whipped? 

A. Friday night; and I set up the next night, too. 

Q. Did you set up with the child after that? 

A. Yes, sir, in April, and again about a month ago. 



718 

Q. How many times have you talked about the child being taken sick 
the night P( stle was whipped ? 

A. I don't know. 

Q,. Have you ever talked with the Doctor about it? 

A. Of course, he knew as well as I did. 

The Court. That is not an answer; have you ever told the Doctor? 

A. Yep, sir; of course. 

Q. Have you told him lately ? 

A. No, f^ir ; it was the time rhe child was sick ; he was talking about 
the child being sick Friday night. 

Q. Do you kuow in wliat month any of the cliildren were sick pre- 
vious to t!ie time of Postle's whipping? 

A. It \\ii:i on a Tuesday in Ftbruary ; 1 am sure; I set up with it all 
night. 

Q. Whon:! have you been talking with since Court adjourned tlds 
evening? 

A. I have not been talkimr with any person at all. 

Q. Haven't you been talking with I>r. Avery since Court adjourned 
this evening? 

A. No, sir; not at all; havn't spoken a word to him; I have not 
talked with him since the Court broke this evening. 

Q,. And he has not spoken to you ? 

A. He just spoke to me as he passed by. 

Q. Didn't walk with you ? 

A. No, sir ; I came with Kizzy. 

Q. \yh('u any of the children are sick, do you sleejt in the Doctor's 
room ? 

A. Yps, sir; always. 

Q, What was you doing the Tuesday night before the child was sick 
iu Mart;h ? 

A. I was sleeping in Aunt Kizzy's room. 

Q. What wore you doing the Tuesday before tliat? 

A. I was in Aunt Kizzy's house. 

Q. What were you doing the third Tuesday before ? 

A. I was at her house. 

Q. And the fourth Tuesday? 

A. The same. 

Q. You remember that distinctly? 

A. Yes, sir. 

Q. Where were you on the fifth Tuesday, before the child was sick in 
March ? 

A. 1 was there in Aunt Kizzy's room. 



719 

Q. How many Tuesday? before the child was sick in March ? was it 
sick wheo you sat up with it ? 

A. T dou't understand you. 

Q You told me the child was sick on a Tuesday in February, and 
you sat up all night? 

A. Yes, sir. 

Q. Now, you tell me that all the five Tuesdays, before that, you were 
in the room with Aunt ivizzy — how many Tuesdays was that before 
this? 

A. I don't exactly know. 

Ite-D irect Exam inn t i.o n . 

Q. Was there more than one dc)or to Dr. Avery's bed room ? 
A. Tliere was two d(jors — oue coming out next the kitclien, anil one into 
the parlor. 

Q,. Near which did you sleep ? 

A. On the floor, near the door where the children was. 

Re- Cro>iS Examination. 

Q. Which door was that? 

A. The one that v.ent into the nursery. 

TESTIMONY OF KFZZY AVERY. 

Kiz'/y Avery, a witness for the defense, being duly svv'v)!']), tcs'.iued as 
follows : 

Direct Examination by Mr. Wil'iOii. 

Q,. Whei'e do you live ? 

A. In Yorkville, York District. 

Q. Whose place do you live on? 

A. Dr. Avery's. 

Q. How long have you lived there ? 

A. About twenty-five years. 

Q. What do you do there ? 

A. Cook. 

Q. Where do you sleep at night ? 

A. I sleep in my room, about ten steps from the white folks' door. 

Q. Is it a part of the dwelling house or outside ? 

A. No, sir; outside kitchen, and I have a bed room in one end of it. 

Q,. What direction is Dr. Avery's bed room from where you sleep ? 

A. Pretty near facing my window. 



i 
720 1 

Q. Is there any window in Dr. Avery's room facing your room ? | 

A. Yes, sir. j 

Q. Could you see or not? J 

A. I could see. ] 

Q. Can you see from your room into Dr. Avery's room ? i 

A. Yes, sir; right from my own window right into his window. ; 

Q, There where you sleep every night? 

A. Tliere is where I sleep every night. 

Q,. Who sleeps with you ? ■ j 

A. Lou Chambers. 1 

Q. Did you hear of the whipping of Postle and of Sam Sturgis? ' i 

A. Yes, sir ; I heard of it. 

Q,. When did you hear of it? 

A. Saturday morning. 

Q. How long after it occurred ? 

A. It was in the night sometime, and we heard it in the morning be- 
tween 8 and 9 o'clock. 

Q. What month was that in ? 

A. In March. . 

Q. Who did you hear it from ? 

A. From a colored woman named Nancy Dunlap first. 

Q. Who else? 

A. Miss Sarah Chambers. 

Q. Where did Louise sleep that Friday night? 

A. Slept in the house. 

Q. Was it her habit to sleep in the house? 

A. No, sir, but the baby was sick, and they called upon her to stay in 
the hoHSf! that night. 

Q. What business did she attend to at Dr. Avery's ? 

A. Cleaning up the house, waiting on the table, and nursing the 
bal>y. 

Q,. Was it her habit to stay in the house v.hen any of the children ' 
were sick ? ! 

A. Yes, sir; it was her habit. ' 

Q. rL)\v many children has Dr. Avery got? ^ 

A. Got six. I 

Q. What is the age of the oldest ? I 

A. About fourteen. I 

Q,. AVhat is the age of the youngest? " 

A. Just two years old, I believe. 

Q,. What is the age of the next youngest ? i 

A. About four.- 

Q,. And there are six in all ? j 



721 

A. Yes, sir ; six in all. 

Q. You recollect that she staid in the house that night ? 

A. Yes, sir. 

Q. Did you see Dr. Avery that night? 

A. Yes, sir ; I did. 

Q. Did you see him before he went to bed ? 

A. Yes, sir ; seed him before he went to bed, and seed him when he 
got up in the morning. I generally rise between four and five o'clock. 

Q. Did you see him at any time from your window during the 
niglit ? 

A. Any time I could see him from the window. 

Q. Did you see him that night, in the bed room, from your win- 
dow ? 

A. Yes, sir. 

Q. What time in the night ? 

A. Between 10 and 11 o'clock. 

Q. What was he doing? 

A. He was in bed. 

Q. Can you see in his bed fr\Om your window ? 

A. Can see in his bed from my window. 

Q,. Your house is ten steps from his room ? 

A. Yes, sir. 

Q. And you can see from your window into his bed room? 

A. Yes, sir. There is a door and a window, both right o|)posite his 
door. 

Q. Are you a, sound sleeper? 

A. No, sir; I ain't. 

Q. What is your age ? 

A. My age is sixty-six years old ; will be agin some time in- 
March. 

Q. Are you easily aroused, or not ? 

A. Very easily aroused; nothing hardly interferes about the yard but 
what I knows it ; he cannot go to the stable and catch his horse, nor 
come out, but what I know it, for the stable door makes a racket, and 
the gate makes a racket, and he has to come right close to my door with 
his horse. He can't get up any time of night without I know it. 

Q. Could he have gone out that night, and passed your house, through 
that gate, without making a noise ? 

A. No, sir. 

Q,. Why would the gate make a noise ? 

A. It has a latch on it, and makes a racket when you open it. 

Q. What sort of a latch ? 

46 



722 

A. Wooden latcli ; and the stable door has an iron latch and a lock 
to it. 

Q. What sort of hinges has it ? 

A. Got iron hinges. 

Q. Does the stable door make any noise, or not ? 

A. Makes a great deal of noise. 

Q. When you open it ? 

A. Yes, sir. 

Q. Did you hear Dr. Avery moving about the lot that niglit at all ? 

A. No, sir; I never heard him moving about at all. 

Q. Did you hear him come out of the house that night ? 

A. No, sir ; I never heard him come out. 

Q. And you are certain that Louisa staid in the house that night ? 

A. Yes, sir ; I am certain of it. 

Q,. And you are certain 

A. That the child was sick. 

Q. Were you present, Kizzy, when Mrs. Avery and Postle had an 
interview ? 

A. Yes, sir; I was standing there. 

Q. Who else was there ? 

A. Lou Chambers and me, and his little son Eddie, and Mr. Cooper. 

Q. Did you hear Mrs. Avery make any threats, or Mr. Cooper ? 

A. No, sir ; I never heard them make aiiy. 

Q. What did Postle say ? 

A. Mr. Postle said this — he said that he didn't prosecute Dr. Avery, 
and coldn't say it was Dr. Avery at all, that whipped him. 

Q. You heard no threats made at him? 

A. IS 0, sir; no threats. 

Cross- Examination by Mr. Gorhin. 

Q. How long. have you lived with Dr. Avery ? 
A. Twenty-five years. 

Q. How do you remember that the child was taken sick on Friday 
night ? 

A. I remember very well, I was there in the yard. 

Q. What makes you remember it was Friday night? 

A. What was the reason I couldn't remember it was Friday night ? 

Q, What makes you remember it was Friday t 

A. 1 know it was Friday night — yes, sir, it was Friday niglit. 

Q,. There didn't anything else happ. n to make you remember it ? 

A. No, sir ; nothing that I know of. 

Q. When did yuu begin to talk aboiu it being Fiiday night? 



A. We talked about it the Friday niglit when Postle was whipped — 
that is the way. 

Q. When did you begin to say it was Friday night first ? 

A. Because they said Dr. Avery whipped him ; and we all said Dr. 
Avery didn't whip him, because he was home that night. 

Q. When did you begin to say it was Friday night — not until after 
you heard that they said Dr. Avery whipped him ? 

A. No, sir ; I don't know as I did. 

Q. When did they first begin to accuse Dr. Avery of doing it? 

A. They didn't know who done it until after Dr. Avery was put in 
jail — then it was read out against him. 

Q. Then, that is the first time you ever began to talk about it being 
on Friday night? 

A. Yes, sir ; I suppose we began to talk about it then. 

Q. Who did you talk with about it then? 

A. We just talked there amongst ourselves? 

Q. Who did you talk wilh, first, about it? 

A. I don't know, particular, wdio I talked with, first, about it? 

Q. Wasn't it with Louise ? 

A. Yes, sir ; it might have been her. 

Q. She was the first one '( 

A. Yes, sir. 

Q. You sure she was the first, or was it Mrs. Avery? 

A. I think Louisa was the first one. 

Q. Did she tell you, first, it was Friday night, or did you tell her ? 

A. No, sir ; w-e heard it Saturday morning. 

Q. No ; but you have come up to the time when Dr. Avery was put 
in jail — how long since he was put in jail ? 

A. I don't know how long. 

Q. Is it more than a month — about two months ago, is it not ? 

A. Yes, sir ; I reckon it is. . • 

Q,. Can you tell how long ago he was put in jail — what day it was ? 

A. No, sir ; I can't tell what day it was. 

Q. Can y(ju tell what day of the week ? 

A. I think it was Friday. 

Q. The day of the mouth ? 

A. I don't know, exactly, what month, but it was Friday. 

Q. After he was sent to jail,' you and Louise began to talk about it, 
did you ? 

A. No, sir ; we never began to talk about it till his sentence was read 
out. 

Q. You didn't know what he was put in for? 

A. No, sir. 



724 

Q. Aiifl you didn't begin to talk uboiit it until after you heard ■what 
the charges were? 

A. Yes,:^ir. 

Q. And v?hen the charges came out, and he was charged with whip- 
ping Pestle and Sturgis, then you began to talk of its being on Friday 
night, as you say ? 

A. Yes, sir ; then we began to talk about it. 

Q,. And that was the first time you began to talk about it ? 

A. Yes, sir. 

Q. What did you say about it? 

A. Raid Dr. Avery didn't whip him, because he was home. 

Q. Who said that ? 

A. We said it. 

Q. You said it? 

A. Yes, sir. 

Q. Who was it said it ? 

A. Yes, sir ; both of us. 

Q. And you then agreed that it was Friday night ? 

A. Yes, sir ; that was the night he was whipped. 

Q. Then you two agreed together that it was Friday night that the 
child was sick ? 

A. No, we didn't agree to it, because the child wafi sick. 

Q. But you agreed that you remembered it that way ? 

A. Yes, sir; we remembered it that way. 

Q.' Did you go and tell Mrs. Avery that you remembered that? 

A. Yes, sir ; wc told her that that was on Friday night, 

Q. What did she say? 

A. She couldn't say nothing. 

Q,. Didn't she tell you first it was on Friday night? 

A. She may have done it. 

Q,. Don't you think she did do it? Didn't she say she remembered it 
was that day ? 

A. Yes, sir ; she remembez-ed it, too. 

Q. Didn't she tell you that she remembered it before you told her 
that you remembered it ? 

A. Yes, sir. 

Q, When did she tell you first that she remembered that it v/as on 
Friday night? 

A. When we heard the sentence read out about Dr. Avery. 

Q. Do jrou remember what the sentence was? what the complaint 
was ? 

4. The complaint was whipping Blr, Postle and Mr. Sturgis. 

Q. Did the complaint say when they whipped him ? 



725 

A. Said Friday night. 

Q. r>id the coiuphiiut say it was on Friday night? 

A. 1 don't know whether it did or not. Yes, sir ; it was on Friday 
night. 

Q,. Did the complaint say it was ou Fii(hiy night ? 

A. Yes, sir. 

Q. Didn't it say it was on the first day of March ? 

A. Well, they told me so, but I don't know whether it was or not, but 
I know it was ou Friday night. 

Q, All the complaint stated was that he had done it on the first day 
of March? 

A. That is what the complaint was. 

Q. Did you remember ihat that was the night ? 

A. Yes, sir; remembered that that was the night. 

Q. And, that that was on Friday night ? 

A. Y^es, sir ; on Friday night. 

Q. Do you know whetlier the first day of March was Friday or not? 

A. No, sir ; I don't. 

Q. Have you had any conversation with Dr. Avery this evening ? 

A. No, sir. 

Q. Haven't spoken to him? 

A. No, sir ; I don't know as I have spoken to him. 

Q. Has he spoken to you ? 

A. No, sir. 

Q. Now, you was present at that interview with Postle when he went 
to see Mrs. Aver}-. Do you remember anything about Mrs. Avery say- 
ing to Postle, that he had committed perjury, and that he would have to 
go to the Penitentiary for 20 years ? 

A. She said providing if Dr. Avery went. 

Q,. That is, she tohl him if Dr. x\.very w'ent, he would have to go too ; 
she told him that ? 

A. Yes, sir ; that was, providing if he spoke agin massa Avery and 
said mas.>a Avery whipped him — if he had said that massa Edward was 
one that whipped him, and massa had to go to tlie Penitentiary, he would 
have to go too. 

Q. You remember that certainly, do )'ou ? 

A. Yes, sir. 

Q. Slie told him he would have to go there 20 years— did you hear 
20 years ? 

A. No, sir ; I didn't hear her say 20 years. 

Q. You did hear her say he W(jald have to go to the Penitentiary? 

A. Yes, sir. 

Q; Did you hear Mr. Cooper say the same thing, too ? 



726 

A. Well, I didu't hear Mr. Cooper say it — said providing that he went, 
mind. 

Q. Didn't Mr. Cooper say the same thing over, after INIrs. Avery ? 

A. Yes, sir ; I believe he did. 

Q. Do you remember what ailed the baby that night? 

A. Had something like the colic. 

Q. You went in to see it, did you — I mean, that night that Postle was 
whipped ? 

A. It had the colic. 

Q. You are sure about that? 

A. Yes, sir. 

Q. Do you remember how many nights Louise sat up with it? 

A. No, sir ; I don't remember how many nights. 

Q. She slept with you when she didn't sleep with the baby ? 

A. Yes, sir ; me and her sleeps in one room. 

Q. Do you remember she staid up with the baby that night? 

A. Yes, sir ; I remember it. 

Q. Do you remember she staid up the next night after, also? 

A. Yes, sir. 

Q. Did she stay up the nest night after that ? 

A. No, sir ; I don't know as she did. 

Q. Do you know whether she did or not? 

A. I remember she sat up two or three nights with the baby. 

Q. Do you know whether it was two or three ? 

A. It was two or three. 

Q. Was that the first night that .she sat up ? 

A. No, sir ; she sat up more than that night. 

Q. Was the night tliat Postle was whipped the first night she sat up? 

A. No, sir ; she sat up a good many niglits. 

Q. But right then; did she sit up the night before? 

A. She sat up the night before, and that night too. 

Q. You recollect that, certain ? 

A. Yes, sir, 

Q. You sleep right there where you could look in and see her ? 

A. Sleep right there, where I can look in tlie house any time. 

Q. And you keep awake all night? 

A. No, not all night; but I get up a good many times and smoke; and 
if the ciiildren cries in the house I can hear tliem at ray house. 

Q. Now, you think that the Doctor couldn't go out and get his hor.se 
without your knowing it? 

A. No, sir; he couldn't. 

Q. Couldn't come in the house without you seeing him ? 

A. No, sir. 



727 

Q. Did you ever know him to go out at night ? 

A. Ne\'er but one night, and that v/as the night he was pressed to go 
to Chester; went at 7 o'ch)ck, and was back about 4. 

Q. When was that? Wiiat time of the year? Was it Ln-st March, 
about the time Postle was whipped ? 

A. It was before that, I think, or after, I don't know which. 

Q. You sure he went to Chester before Postle was whipped; went at 7 
in the evening and came back in the aiorniug? 

A. Yes, sir ; home next morning at 4 o'clock. 

Q. What occasion was that when he went to Chester ? What was doing 
down there ? 

A. Cutting up a rusty down there — made out the black uns was going 
to rise, or some devilment or other, and they sent for help. 

Q. He went down to put the blacks down ? 

A. I don't know whether he went to put them down, but I reckon he 
went for the safety of other people. 

Q. Now, that was before the child was sick, and before Postle was 
whipped ; you sure about that? 

A. Yes, sir; I think I am sure of it. 

Q. How long was it before Postle was whipped ? 

A. I don't know how long. 

Q. Was it a week ? 

A. More than that. 

Q. Think of it ; I want to know exactly, if you can remember, how 
long it was before he went to Chester? 

A. I cannot recollect how long, but I know it was a good while. 

Q,. Was it two or three weeks ? 

A. Yes, sir ; it may have been two or three weeks. 

Q. How did he go to Chester, on horse back or on the cars ? 

A. Horseback part of the way, the other part on the cars. 

Q,. He went to Rock Hill on horseback ? 

A. Yes, sir. 

Q. And took the cars and went to Chester ? 

A. Yes, sir. 

Q. And came back the next morning ? 

A. Yes, sir, ou thfc cars again, and walked to the house and eat his 
breakfast. 

Q,. And about two wrecks after that Po-tlewas visited and Sam Sturgis 
was whipped ; you are sure that is the way of it? 

A. I ain't sure ; I think that is the way of it. 

Q. Is that the only night you ever knew him to be out ? 

A. Yes, sir ; the only night I ever knew him to be out. 
Q. In twenty -five years ? 



728 

A. 0, not in twenty-five years. 

Q. He was in the habit of being out some other times ? 

A. Not often. 

Q. Occasionally ? 

A. Not very much ; he is a man that stays at home a great deal, and 
tends to his own business. 

Q. And you sleep where you can look in on him ^ 

A. Where I can look in on him any time I jilease ; I see him every 
night. 

Q. In the night? 

A. Yes, sir, sometimes. 

Q. What time does he go .to bed ? 

A. About ten o'clock. 

Q, What time does he get up in the morning? 

A. About five. 

Q. Yuu can see him every morning and night, and look over there 
every night and morning ? 

A. There is ]]othing to hinder. 

Q. You did do it ? 

A. Yes, sir, I did look. 

Q. After you put your light out and he put his light out, could you tell 
whether he is there or not ? 

A. I could tell ; I see him slip off his clothes and go to bed. 

Q. Couldn't he slip them on ? 

A. He couldn't do that. 

Q. Can you see in the dark ? 

A. No, sir. 

Q. How do you know but what he could do it? 

A. I don't think he could ; he wouldn't do it. 

Q. How do you know that? Did he ever tell you he wouldn't do it? 

A. No, sir; but my own eyes convince me. 

Q. Why wouldn't he do it? 

A. He had no occasion to do it. 

Q. He is too good a man to do it, you mean to say? 

A. Yes, sir ; I can say it. 

Q. What was his habit about that, if he wanted to get up in the night 
to go out ? 

> A. Well, many times people do get up andgo'out; but he came to 
the kitchen, and came back to bed. 

Q. You mean to say he always — 

A. Not every time. 

Q. He didn't necessarily come out to your house every time he go 
up? 



729 

A. No, sii' ; not necGssarily. 

Q. Couldii't he come out ol the front side of the house iiiid you not 
hear him ? 

A. No, sir ; he wouhhi't. 

Q. Couh3,if he wanted to, couldn't he? 

A. Yes, sir ; if he wanted to. 

Q. Didn't you walk up to the State House, this evening, wiih Dr. 
Avery ? 

A. Yes, sir ; I came up here to-niglit with him ; me and Lou Cham- 
bers come together. 

Q. Didn't you come with the Doctor, too? 

A. To be sure; he came on as we did. 

Q. With you, or beside you ? 

A. I saw him come on as we came. 

Q. Right with you ? 

A. Yes, sir. 

Q. Talk wicli him ? 

A. No, sir; I don't know as I «poke to him from the time I left the 
hotel until I came here. 

Q. Did Louise talk with him ? 

A. I don't know ; I never listened. 

Q. What hotel? 

A. Nickerson's. 

Q. Were you on the outside? 

A. I was next to Lou; uie and LoQ walked linked arms together. 

Q. And Louise was next to the Doctor? 

A. I don't know whether she was or not ; I never looked. 

TESTIMONY OF DR. TALLY. 

Dr. Tally, a witness for the defense, being duly sworn, testitied as fol- 
lows : 

Direct Examinaiion by Mr. McMader. 

Q. Tlovr long have you been practicing medicine ? 

A. About 22 years. 

Q,. Where did you graduate ? 

A. Charleston. 

Q. What was your occupation during the war? 

A. Surgeon in the Confederate army. 

Q. You well acquainted with gun-shot wounds? 

A. Yes, sir. 

Q. Do you know defendant. Dr. Avery ? 



730 

A. Yes. sir. 

Q. Have you ever examined his arm ? 

A. Yes, sir. 

Q. And his hand ? 

A. Yes, <ir. 

Q. Will you please describe to the Court and jury the character of 
the wound, and effects of the wound, upon his arm and hand? 

A. I had no acquaintance with the wound at an earlier day than to- 
day. I examined it this morning, by request, and traces of the wound 
are still apparent in the armpit. The brachial plaxis nerves there were 
torn through entirely, the nerves which preside over the motions of the 
fore-arm especially ; the extensor muscles of the fore-arm are paralyzed 
partly, so as to deprive him of the power of moving the fingers ; these 
fingers arc contracted, and muscular power over them is lost ; the thumb 
is paralyzed almost entirely ; there is scarcely any power of the hand 
left now; indeed, the hand is entirely useless. The wound, as I have 
stated, was in the armpit. 

Q. Must the wound necessarily have been a very severe one? 

A. Of course. 

Q. And very dangerous one ? 

A. Of course, without doubt ; could scarcely have been more danger- 
ous not to have cost him his life. 

(l- With regard to the capacity of raising the arm up ? 

A. That is very much impaired ; he has more power over the arm than 
over the fore-arm, however ; he can raise the arm to a horizontal posi- 
tion ; he cannot extend it any height ; he can raise the arm in that posi- 
tion, [illustrating,] but the power over the jbre-arm and hand is espe- 
cially lost. 

Mr. McMaster. I will ask permission to exhibit the hand to the 

jury- 

The Court. I have no objection, unless the other side has. 
[The defendant showed his hand to each juror.] 

Cros>i- Examination 6y Mr. Corbiii. 

Q. You have examined the muscles and the present formation of the 
hand — is the jjosition it has assumed permanent? 

A. It is permanent ; oh, yes. 

Q. It isn't flexible any longer? 

A.. No, sir. 

Q. Neither the fingers nor the wrist? 

A. There is some degree of flexion about the wrist — some slight de- 
gree — but it will never be more than it is at present. 



731 

Q. Whatever position that arm is iu, that hand still remains the 
same ? 

A. Yes, sir. 

Q. And the fingers the same? 

A. Yes, sir. 

Q. Whether it is raised up or down, by the side, any position what- 
ever, still that hand remains fixed? 

A. Yes, sir. 

TESTIMONY OF R. P. MAYRAXT. 

R. P. Mayrant, a witness for the defense, being duly sworn, testified as 
follows i 

Direct Examination hy Mr. Wilson. 

Q. Where did you live in 'iS^''! 

A. I lived iu Columbia, sir, until the latter part -of October, when I 
was appointed Deputy Constable of the State. 

Q. Where did you go to then? 

A. Ordered to make ray headquarters at Rock Hill. 

Q. When did you go to Rock Hill ? 

A. I went there on the 31st of October, 1868. 

Q. Were you at Rock Hill when the election came off in 1868? 

A. I was there from about 8} iu the morning until night, the day of 
election. 

Q. Did you observe any crowding of the colored people from the polls 
that day ? 

A. There was none whatever, sir ; I had appointed several Special 
Constables on that occasion, and requested them to see there was no 
crowding the polls by white or black. I requested all to fall back, and 
give every body a chance to vote, after they had voted> 

Q,. You belonged to the Constabulary force ? 

A. Yes, sir. 

Q. By wdiora were you a])pointed ? 

A. By John B. Hubbard. 

Q. Did you see any colored people prevented from voting there that 
day ? 

A. jSTo, sir. 

Q,. Did you see Dr. Avery interfering any that day ? 

A. He didn't, sir. 

Cros-i-Examination by Mr. Corbin. 
Q. You say you remained at the polls all day? 



732 

A. From 8J in the raorning, uutil the polls closed. 

Q. What time was that ? 

A. About 6 o'clock in the evening. 

Q. Did you see Dr. Avery there at all ? 

A. I saw him there that day 

Q,. Did he stand near the ballot box and challenge voter^ ? 

A. No, sir; he went up once, staid a few minutes, and walked ofF — 
•was there only a few minutes ; he went up and voted, I think ; I saw him 
come up to the polls once or twice, but lie never remained but a few 
minutes ; I was close enough to hear if he attempted to stop any body 
from voting. 

Q. You say he didn't challenge anybody ? 

A. I didn't see him. 

Q. Do you know ? 

A. I don't know as he did. 

Q,. Do you kn(jw whether lie did or not? 

A. I don't know. I didn't hear him nor see him challenge any. 

Q. How were the polis arranged? 

A. They had it in an old store; they had a window; there was no 
fence around it ; it was perfectly open to the street. 

Q. Was there a division fur while people to go up oue side, and 
colored people the other ? 

A. They all would come up to the window, and voted as they pleased. 

Q. No separation of voters ? 

A. No, sir; onetime during the day there were two windows open; 
one on one side of the door, and the other on the other. 

Q. Did white people go to one, and colored to the other? 

A. Generally, the white people went to the right hand window, and 
colored people to the left. 

Q. Do you recollect seeing a crowd of white men around the polls? 

A. There was no white men around the polis at all. There was men 
who stood around the ^^olls for awhile, but, at my request that they keep 
away from the polls as much as possible, they did so. 

Q, AVhich election in 'G8 was that? 

A. Ele(!tion of Kepresentatives for Congress and members of the Legis- 
lature. 

Q. Were you there at the election iu June? 

A. No, sir. 

Q. What month was that election in, that you attended ? 

The Court. What relation has this to the indictment? The Act of 
Congress was not passed at that time. 

Mr. Corbin. Our witness, Mr. Gunthorpe, testified there was a plan 
agreed upon to go and disturb voters at the polls iu Rock Hill. We 



have put one witness on the stand) who testifies he was present at that 
election, and there was just such an arrangement carried out. Now, I 
want to know from this witness, which election he attended. 

Q. Was the election you refer to, in April, the time of the adoption of 
the Constitution ? 

A. No, sir ; it was in November. 

Q. Are not members of the Legislature elected in June or July ? 

A. I think it was in November, sir. 

Q. Do you know whether there was an election previous to that time ? 

A. I don't know whether there was previous. I know there was one 
in November. 

Q. For members of the Legislature ? 

A. Yes, sir. 

Q. You are sure of that ? 

A. I am satisfied of it. 

Q,. What makes you think so ? 

A. I was there and saw the tickets, and members of the Legislattire 
were voted for ; I think so. 

Q. Didn't you know members of the Legislature were voted for in the 
Spring of that year ? 

A. No, sir ; I didn't. 

Q. Why do you say they were elected in the Fall, then ? 

A. Because I think I recollect reading their names on the ticket. I 
didn't vote there, and had no right to vote, and didn't try to vote, and 
didn't look at the ticket particular. 

Q. Where were you when the election took place in the Spring? 

A. I was in Columbia. 

Q. And you don't remember that members of the Legislature were 
elected then ? 

A. I won't be very positive about it, but, to the best of my recollec- 
tion, it was in November. 

Q. There was an election in November ; but don't you recollect the 
two preceding elections that year ? 

A. No, sir. 

Q, Do yon remember that there were two elections previous to that ? 

A. I don't know whetlier there was two, or more. 

Q. Do you remember that there were two ? 

A. I don't know there was. 

Q. Do you remember that the Constitution was adopted in April, pre- 
vious to that — that there was an election in April ; and that there was 
a Governor elected, and members of the Legislature? 

A. I don't kiiow what time it was; I recollect there was a Governor 
elected. 



Q. You dou't remember much about that election do you ? 

A. No, sir, 

Q. Do you remember the election in June, previous to that ? 

A. No, sir. 

Q. Do you remember whether there was one or not? 

A. I had nothing to do with that election. 

Q. Do you kuow whetlier there was one or not? 

A. I know there was one in November, '68. 

Q. But you don't answer my question ; if you know, say so ; if you 
don't say that? 

A. I don't recollect particular there was an election then. 

Q. Are you very positive that members of the Legislature were elected 
in November ? 

A. I don't know that I can say that they were positively elected then, 
but to the best of my recollection. 

Q. You recollect that as well as you recollect anything ? 

A. I know they voted for members of Congress at that election, and I 
think for members of the Legislature. 

Q. Did they vote for a Governor too ? 

A. No, sir. 

Q. Do you know or not ? 

A. I don't think they voted for Governor. 

Q. Then you are not very certain about anything except that they 
didn't crowd the polls? 

A. I know they didn't crowd the polls. 

Q. And you dou't kuow anything about any other election, whether 
they crowded the polls or not ? 

A. I wasn't at Rock Hill at any other election. 

He-Direct Examination. 

Q,. Which had the majority of votes at that box ? 
A. The whites — the Democrats. 

TESTIMONY OF FRANKLIN II. BROWN. 

Franklin H. Browu, a witness for the defense, being duly sworn, testi- 
fied as follows : 

Direct Examination by Mr. Wilson. 



Q. Where do you reside ? 

A. I live in York District, sir. 

Q. In what direction from Rock Hill? 



735 

A. Seven miles west of Rock Hill. 

Q. Where were you living in '68 ? 

A. Well, sir, I was living just where I am now, the same place. 

Q. How far from Ebeuezer ? 

A. We call it four miles. 

Q. Do you know Mr. Gunthorpe? 

A. I don't know that I do ; the name is familiar to me, and I think I 
have seen him, 

Q. Did you hear him testify in this case? 

A. Yes, sir. 

Q. Do you know anything about that order of 'G8, that he spoke of 
joining? 

A. Well, I suppose I do. 

Q. Were you a member of that order? 

A. Well, I will just tell you all I know about that thing. In the fall 
of '68, there was a neiglibor came to me and solicited me — well, he spoke 
of it to me that there looked like there would be a little fuss; he said 
there apfieared to be organizations among the colored people, and said 
the neighborhood had it in contemplation to form an organization 
for the purpose of self-protection — he didn't say for self protection at 
the time, but told me that afterwards — and they were going to meet at a 
certain time, and solicited that I should go. I says to him : " I don't 
know whether I will go or not. I have not thought anything about the 
matter ; but I will think about it." - Well, some time after that, he came 
to me and says : " There is goisg to be a meeting a certain evening, and 
will you come over?" I told him probably I would ; and, after early 
supper, I concluded that I would go. And when I went there, I sup- 
pose there was some ten or eleven persons together; and I told them that I 
had been solicited to come there, and I didn't know for what, hardly ; 
that I would like to know somethmg about what it meant, or what was 
the object of it. Well, one commenced putting on his construction on 
it, and another. The thing was talked about awhile. I told tiiem I 
didn't know what the nature of it was, nor anything about the object of 
it, and didn't like to ask many questions, and didn't like to go into the 
thing, unless I knew what it was. They replied that I could ask any 
question I saw fit. I said that I would be glad for a full and satisfac- 
tory explanation of the matter throughout. The explanation given to 
me of it was this, that the colored people were known to be collecting 
sort of in bodies, and they didn't know what it meant ;' and they all 
appeared to be anxious to get up an old musket or gun ; it was 
said they all had a gun of some description; and there had been 
some talk of certain purposes being carried out ; but no one knew 
whether it was reliable or not. And they said, furthermore, that 



736 

the eonditiou of the country was this — that there wasn't a man 
in that country that had arms at all. I felt in the same condition ; 
I hadn't a shooting instrument on the plantation. In facr, I never used 
them. I felt altogether secure without them. We was to be harmless, 
and not interfere with any man's political or religious principles; just 
siinply to act on the defensive. Well, I said I saw no harm in that thing 
at all ; and they asked me then, " Will you go into it?" I told them I 
didn't see any reason why I shouldn't; if any of my neighbors got into 
trouble I would go to his relief, as a matter of course — or women and 
children. 

Q. Then you took an oath? / 

A. Yes, sir; there was an oath. 

Q. V/ho initiated you ? 

A. I think it was Dr. Avery. 

Q. II'jw long did that organization last? 

A. Well, sir, I don't know anything about that now; we broke up at 
once after I was initiated, and it was proposed that they meet some time 
again and make some regulation, and know who had arms, or something 
of that sort. I went to a meeting after that, and then I never knew 
anything more about it. 

Q. What time of the year was that? 

A. I thiak it mu^t have been the latter part of September. 

Q. Did you ever hear of it after the fall of that year ? 

A. Never heard of it. 

Q. Was it not generally understood through the country that that was 
the end of it ? 

A. Ye?, sir; that was one of the conditions. 

Q. Did it embrace the staid, respectable people of that country ? 

A. Yes, sir; that was the kind they said they wanted. 

Q. Was it proposed to use any violence or vioKate the law? 

A. Not at all. 

Q. Was anything said about interfering with the colored people to keep 
them from voting ? 

A. No, sir ; nothing at all ; because that was one of the conditions — 
it was not to interfere with anything of that sort. 

Q. Have you ever belonged to any organization since ? 

A. No, sir. 

Cross- Examination by Mr. Corbin. 

Q. Do you recollect seeing Mr. Gunthorpc in that organization? 

A. I do not. 

Q. Do you know whether he was in it or not? 

A. I do not. 



Q. "What was the process of initiating you? 

A. Well, I don't know; but I think, to the best of my recollection, 
there was a haudkerchief over my face. I don't know much more 
about it. 

Q. Make you kneel down ? 

A. I think they did: I ain't positive. 

Q. Can you tell us what the oath was? 

A. I cannot. 
• Q. Would you know it if you shouLl hear it again ? 

A. I don't think I would, because I was in such excitement, and it has 
been a long time. I may recollect a part of it. 

Q. Do you recollect that you were to be on the side of constitutional 
liberty, as handed down in its purity by our forefathers ? 

A. I don't know that I recollect that part of it. 

Q, Listen to this oath, and see if it is not the one ? 

[Counsel read the oath in evidence.] 

A. That may be it ; I can't say positively. 

Q. Ditl it commence in that way ? 

A. I think it did, probably. 

Q. First, " We are on the side of justice and humanity and constitu- 
tional liberty, as handed di)wn in its purity by our forefathers." Do you 
remember that ? 

A. That may have been it, because it was of some length, you know. 
I recollect that about it. 

Q. "We oppi^se and reject the principles of the Radical party?'' 

A. I don't recollect anything about that? 

Q. Are you certain whether it was in it or not? 

A. I am not certain, but I don't have that recollection. 

Q. Do you remember you were not to divulge anything under peualtj* 
of death! death ! death !? 

A. I think there was something like that in the last of it. 

Q. What did you call the order? 

A. It was called an organization for home protection. 

Q. You never heard anybody call it Ku Klux? 

A. Never did ; I would object to that thing at once. 

Q,. You hail heard about Ku Klux, then? 

A. Very little; I had heard of something like that in Tennessee. 

Q. Did Dr. Avery give you a grip when he swore you in ? 

A. I don't know whether he did or not. 

Q. Did you see any disguises? 

A. I don't think there was a disguise that time. 

Q. Did you see any at any time ? 

A. I saw one man in disguise the next time I went there. 
47 



738 

Q,. "What kind of a disguise was, it? 

A. It was sort of like calico ; it came from the shoulders down a little 
below the kuees. 

Q. What did the society have disguises for ? 

A. I don't knoYv" ; I suppose for disguise. 

Q,. But why did you want to disguise this society for ni.utwal protec- 
tion ? 

A. That is what I don't know, 

Q,, AVhy did you have an oath not to reveal anything under penalty 
of death, if the society was merely for protection ? 

A. I don't know that; that is one part about it I didn't like. 

Q,. Where were these meetings held ? 

A. One was at the forks of the roads, about a mile from my house, on 
the side of the road, in an old pine field. > 

Q. How far from the road ? 

A. About fifty yards. 

Q. In the night or day time ? 

A. Just after night. 

Q. Were both meeiiugs in the niglit? 

A. Yes, sir. 

Q. Where was the second meating? 

A. Near Ebenezer, I think; about half a mile from Ebenezer, 

Q. In a house or out doors ? 

A. Out doors ; in a pine field, about half a mile from the mad, 

Q. Wasn't it a little surprising to you that this peace society should 
meet after dark, in disguise, and out in the field? 

A. Well, they considered that it was a convenient place of naeetiug. 

Q,. Half a mile from the highway ? 

A. Yes, sir. 

Q. Why meet in the dark ? 

A. I don't know^ that. 

Q. Why not meet in a house, somewhere ? 

A. I don't know that, either, 

TESTIMONY OF FRANK CA RUTHERS, 

Fraiik Caruthers, a witness for the defense, being duly sworn, testified 
as follows: 

Direct Examination by Mr. Wilson, 

Q. Where do you reside ? 

A, In York County, four miles from Ebenezer, 

Q. Did you know anj^thing about an organization there in 186S ? 



739 

A. Yes, sir.- 

Q. (by Mr. Corbin). What kind of an organization ? 

Q. Did you hear Mr. Gunthorpe's evidence in this case ? 

A. Yes, sir. 

Q. Did you join that order that he spoke of? 

A. I joined an organization there, for home protection, as I under- 
stood it. 

Q. Dr. Avery a member of it? 

A. I don't know that he was, really. 

Q. Who were present when you joined ? 

A. Several present ; I don't know that I can name many; Iredell 
Jones was Chairman : John McCullough was there ; Robert Al- 
ston — 

Q. Who is Robert Alston ? 

A. He was raised there in Ebenezer — a son of Judge Alston. 

Q. Is he a clergyman ? 

A. Yes, sir. 

Q. Was he in this organization^ also ? 

A. Yes, sir ; he joined it that day. 

Q. What was the understanding as to the object of this organization? 

A. It was just for home protection — rather, that is the way I under- 
stood it. If any raids were to be made by the blacks upon us, we were 
to be ready for it. 

Q. Was it contemplated to use blows, unless in defense ? 

A. No, sir. 

Q. Was it contemplated to interfere with any rights of the colored 
people ? 

A. No, sir ; not at all. 

Q. It was, then, strictly for self-protection ? 

A. Yes, sir; that was my understanding. 

Q. Did they demand any oath of yon when you joined? 

A. Yes, sir. 

Q. Do you remember what the oath was? 

A. No, sir ; I thought so little about it I don't know what the oath 
was. 

Q. Did that organization ever go on any raid that you know of? 

A. No, sir ; none that I know of? 

Q. Do you know what became of the organization ? 

A. No, sir; I don't know. 

Q. Did you ever have any knoAvledge of it^^ existence beyond that 
year ? 

A. None at all — that is, I heard of a i-aid, a while after this, upon 
Captain Ferris' house. 



740 

Q. Da yoii know of this organization having anything to do with 
that ? 

A. No, sir; I. don't know anything about who did it? 

Q. Have you belonged to the organization since ? 

A. No, sir. 

Q. Were you present when the Rev. Mr. Alston was admitted? 

A. Yes, sir. 

Q. Do you remember what occurred tlien ? 

A. Yes, sir; I recollect that very distinctly. He asked the question, 
he wanted to know if it was a political organization ; and it was ex- 
];)lained to him, by Mr. Jones, that it was not. He said if it was he 
would have nothing to do with it. 

Q. What was the explanation as to its true purpose and object? 

A. He said it was for self-protection; provided that if the blacks 
should make a raid on us, the object was we could come together. 

Q. What led to this organization for self-protection ? 

A. We had seen that the blacks — we supposed that they were organ- 
izing. Some of them had got guns, and we suspected that there might 
be danger, and we wanted to be prepared for it. 

Q. Did you have "Turks" or " Night Hawks ?" 

A. No, sir. 

Q. Anything about Mouarchs ? 

A. No, sir. 

Q. Did you see any disguises at that meeting ? 

A. No, sir. 

Cross-Exam inatiou hy Mr Corbin. 

Q. One meeting was enough for you, was it? 

A. Well, there never was any other meetings that ever I knew of. 
Q. Had you any reason to fear the colored people ? 
A. We had some reasons from their drilling about that time. 
Q. Didn't the colored people treat you politely and kindly ? 
A. Yes, sir. 

Q. Wasn't that their general character ? 
A. I believe it was. They never mistreated me. 
Q. Who did you hear made the Ferris raid? 
A. It was the report that it was a Ku Klux raid. 
Q. Did'nt you understand that Iredell Jones is Chief of a Klan at 
Rock Hill ? 

A. Yes, sir ; that day. 



741 

TESTIMONY OF JOHN A. m'cULLOUGII. 

John A. McCullougb, a witness for the defense, being duly sworn, tes- 
tified as follows : 

Direct Examiiiatiou by Mr. Wifsoii. 

Q. In what County do you live? 

A. I live in the eastern part of York County, near Ebenezcr — abont 
two miles from Ebenezer. 

Q. How far from Dr. Avery's. 

A. Well, I live about two miles from his house. I join plantations 
with him. 

Q. How far from Rock Hill ? 

A. Five miles, they call it. 

Q. Did you hear Mr. Gunthorpe's testimony in reference to that order 
of 18G8 ? 

A. I did.' 

Q. Did you know anything about that order — did you join it ? 

A. Well, I was at Rock Hill the latter part of that year, and there 
was a good deal of excitement in the country, and [ was asked if I would 
go into an organization for self-defence, and I told them I would. I 
thought it looked like we needed to be prepared for something. 

Q. Why did you think you needed to do something? 

A. Tiiere was a good many rumors in the country, and the black peo- 
ple were mustering about, and had made some threats in Rock Hill and 
Ebenezer. 

Q. What kind of threats ? 

A. Something about their going to make Ebenezer run with blood. 

Q. What was the threat about Rock Hill? 

A. They were going to burn Rock Hill. I think that was the report. 

Q. Was that the rumor in the country ? 

A. That was the rumor in the country. 

Q. That was the time you joined tiiis organization? 

A. Yes, sir. 

Q. Did you see Mr. Gunthorpe there ? 

A. No, sir. There was only one thing made an impression on my 
mind. "When we entered into the organization there was a Methodist 
minister in there at the time, and he asked the question, whether this was 
a military organization or not. Says he: '"I am opposed to that." Not 
a military, a political. Says he : " I am opposed to that." 

Q. Did you take an oath ? 

A.. Yes, sir ; but I don't mind a word of it, uow\ 
Q. AVas it read or repeated ? 



742 

A. I don't remember which way it was. 
Q. Were you blindfolded or not? 
A. I was blindfolded. 

Q. There was some secrecy about this organization ? 
A. Yes, sir ; there was to be a secrecy. 
Q. What was the object of that secrecy ? 

A. I don't know whether it was ever explained or not ; I never went 
far enough into the thing to know anything about it. 

Cross- Examination by Mr. Corbin. 

Q. You say there was a minister initiated the same time you were? 

A. Yes, sir ; Mr. Alston, now in Arkansas. 

Q. Do you know of any other Ku Klux preachers up there? 

A. No, sir ; I don't know that he was a Ku Klux ; there was nothing 
said about Ku Klux that day. That was just an organization for self- 
defense ; I don't pretend to say it was Ku Klux, nor was not. 

Q. Do you remember anything about the oath you took? 

A. We were bound somehow for the protection of our families and our 
race, and so on. 

Q. Do you remember that any man who divulged, or caused to be di- 
vulged, any of the secrets of the order, was to meet the fearful penalty 
and traitor's doom, which is death! death! death!? 

A. Wdl, I think there was something about the thing. 

Q. There was some death about it, wasn't there? 

A. I don't know ; I expect there was. I don't know the oath ; I know 
there v.as some sort of an oath taken ; but I tell you it is just this way, 
Mr. Corbin, I didn't go far enough to know anything about it. 

Q. You swallowed the oath ? 

A. I suppose I swallowed the oath, but I can't mind what it was. 

Q. Why didn't you go back and attend the meetings of this society ? 

A. Because I didn't see any use for it. 

Q. You did see some use of it, though, before you went in? 

A. We expected there was. 

Court adjourned. 



743 

Columbia, S. C, January 1, 1872. 
The defense announced that their case was closed. 

TESTIMONY OF C. H. BANKHARD. 

C. H. Bankhard, a witness called by the Government in rebuttal, 
testified as follows : 

I am on duty as a juror in this Court. On Saturday evening, i saw 
the witness, Louise Chambers, in close conversation with Dr. Avery,just 
before the opening of the Court for the evening session. They were just 
at the bottom of the State House steps in tiie rear; I was coming up to 
the Court House, and saw a lady and Dr. Avery in front, and an old 
lady; the gentleman whs in c^ose conversation with this younger lady ; 
and when the witness, Louise Chambers, came on the stand, I perceived 
that she was the one that Dr. Avery had been talking to. 

TESTIMONY OF GOVERNOll FEWELL, (COL.) 

Governor Fewell, a witness for the Government, in rebuttal, testified 
as follows : 

I was present at the election at Rock Hill, in the fall of 18G8 ; Mr. 
John lUteree, Or. Avery and Ira Jones were there, crowding colored 
people Irom voting. 

Cro-<s- Examination hij Mr. Wilson. 

I think the colored peoi)le had the majoiity of votes, but those gentle- 
men tried to over-persuade the colored people, and to push them away ; 
they shoved them back to keep thera from voting, and tried to make 
them vote on the Democratic side ; they pushed some of them back, be- 
cause, they said, they were not old enough to vote ; I don't know who 
the election was for; I don't know that they wei-e voting for members of 
Congress ; but I just voted. 

Q. Who did you vote for? 

A. I voted for Grant. 

Q. Who else? > 

A. Scott. 

Q. Who else ? 

A. Dr. Neagle, and I don't know who. 

TESTIMONY OF MAJOR MERRILL. 

]\[ajor Lewis iNferrill, a witness for the Government, in rebuttal, testi- 
fied as. follows: 



744 

Direct Examination by Mr. Corhin. 

Q. Are you a Uuited States officer, on duty at Yorkville ? 
A. Yes, sir. 

Q. How long have you been on duty there ? 
A. Since the 26th of last March. 

Q. State whether, about two or three weeks ago, the Rev. Mr. Cooper, 
of Rock Hill, came to your office, in Yorkville, and had a conversation 
with you in reference to the intimidation or interference of Isaac Postle, 
one of the witnesses? 

A. Yes, sir; such a conversation occurred in my house. 
Q. State how it commenced and what was said, as nearly as you can 
recall it? 

A. Mr. Cooper had been arrested by the United States ISIart^hal on a 
warrant ij^sued as the result of charges of intimidation; he was brought 
by the United States Marshal to my house ; when he got there, I was at 
dinner; a few minutes subsequently, I went into the parlor and found 
him thei-e, and asked him to sit down ; he instantly began a series of 
explanations of his relations to the indictments; I checked him, and 
cautioned him that he was before me, while I was acting in my official 
capacity, and that any admission he might make in regard to the matter 
mio;ht be used against him as evidence, and that he should, therefore, be 
careful in his statements, and make no admissions that might injure him- 
self; I further cautioned him by telling him that I had no dispositii)n to 
discuss the merits of the case ; he expressed a great deal of solicitude to 
discuss the case, and did so at some length ; after again cautioning him, 
I said he might say anything he pleased, and I woidd listen to him; in 
the conversation, I repeated to him what had been told me by Postle, as 
to the character of the intimidation used by Mr. Cooper and Mrs. Avery. 
Mr. Cooper positively denied that any such langiuige had been used; he 
then told me that possil)ly the negro's own notion of perjury had influ- 
enced his mind as to what had been stated to mi>. On his suggesting this 
to me, I asked him distinctly if anything at all had been said by him, 
or by any other person, to ihis man Postle, in regard to perjury; he dis- 
tinctly and repeatedly said that no allusion was made to it at all. 
Q, What did you state to him of Postle's story to you ? 
A. I told him Idiad learned — I do not remember I told him of whom — 
])()ssibly it was iVom the counsel ibr the defense— that Postle had made 
an affichivit, which, without looking at it, 1 understood Postle to say was, 
in eflect, a denial of any knowledge of the relations of Dr. Avery to this 
particular outrage; I had not looked'at the affidavit at that time; I told 
Mr. Cooi>er that fact; I was not sure that I told him where I got ray in- 
formation from in regard to it; having been especially anxious to protect 



745 

Government witnesses against intimidation, I sent for Postle and ques- 
tioned him in regard to it; he repeated, suhstantially, the story he tohl 
here on the witness stand ; that story I repeated to ]\Ir. Cooper, and said 
I had nothing to say al)out its trulhfuhiess; that I did not chai'ge, })er- 
sonally, tliat the matter related by Postle was true, but that it had be- 
come necessary for me, in the discharge of my duty, to issue a warrant 
for hi-^ arrest, for intimidation, and then followed the conversation. 

Q,. Then he was fully advised by you, that Postle had stated to you, 
that he had named the consequences of perjury ? 

A. Yes, sir; I stated to him, in explicit terms, that Postle had told me 
that Mr. Cooper and Mrs. Avery had told him that Dr. Avery would be 
acquitted, and that, to use his own expression, they would then take 
"the effort of the law" upon him, which would result in his being ]nit 
in the Penitentiary for twenty years, and be branded and crop])! d ; to 
that he replied, that no such conversation had occurred at all. I a.-ked 
him the question, and repeated it several times, as to whether anything 
had been said to the negro about his statement being false, or, as to the 
consequences of his testifying, and the reply of Mr. Cooper was, several 
times, and emphatically, thit uo such statement had been made. 

Cross- Examiriatio II by Mr. McMaster. 

Q. Have you not received credible information that these outrages upon 
Sturges and Postle were committed by some other parties ? 

Judge Bond. That is new matter; and, so far as new, matter is con- 
cerned, you make him your own witness. 

INIr. McMaster. AVe so umlerstaud. 

M:ijor Merrill. I don't recall at this moment, and I do not think it is 
a fact that I have any information upon the subject outside of the testi- 
mony given before the Court here, and mo.st of which I previously 
knew of 

Q. Have you any information in your possession, at the present time, 
that would be sufficient for you to arrest other parties for these alleged 
crimes ? 

A. Unquestionably, if I could find them. The persons are those named 
in the indictment, which, if I am not mistaken, contains all the names 
except two, and those are the two persons identified by Harriet Postle, 
and with whom I never had any conversation until a very few days since 
in this place, and who, I think, were not before the grand jury; that I 
understand to be the reason why the names are omitted from the indict- 
ment. 

Q. Are those the only two names of which you have information that 
were engaged in this crime ? 



746 

A. I believe they are ; I cannot, state positively ; from the quantity of 
information I have received fiom various sources, it is possible that cer- 
tain points may have escaped my memory at the present time. 

Q. Since you came down to this prosecution, have you not received 
information that you are proceeding against the wrong parties? 

A. No, sir, 1 have not; if I had, I should have very carefully investi- 
gated the matter, and called the attention of the District Attorney to the 
fact. 

Q. Have you ever received information of the persons who shot into 
Governor FewcH's house? 

A. Yes, sir. 

(^. What time did you receive that? 

A. Aside from the information which has been partly testified to before 
the Court here, some other of the same kind of information was very dis- 
tinctly and specifically given me by Mr. John Kateree, who was wounded 
on that night. He mentioned quite a number of outrages I do not now 
recall, but a good many of those names were unfamiliar to me. 

Q. Do you remember him saying that Dr. Avery was not in that 
crowd i* 

A. Mr. Rateree distinctly said that Dr. Avery was one of the persons 
who was there. I said to Mr. Rateree that a young man named Parks 
Wilson was there, and Mr. Rateree denied that, and said he knew he Avas 
not there. Among those he named as locing present were Ira Jones, Major 
Avery and Bill McElwee. I think he is the same man that the witness 
Castle referred to in his testioiony. And there was a young man who 
was called Daniel Mathew; I do not know whether he is the same that 
has been referred to or not. James Austin's name was also mentioned. 
Mr. Rateree's statement as to the names was much fuller than I can now 
give, because the names were unfamiliar to me, and I don't recall 
them all. 

Q. Did you make any note, at the time, of the names? 

A. I did not, personally, and I do not now remember if the phono- 
graplu r was there or not. The examination of Mr. Rateree was quite 
long. I remember Mr. Rateree expressed an earnest solicitude to tell 
me all he knew about the Ku Klu.x organization, but, when became to 
my house, he faltered and prevaricated to such an extent that it induced 
me, at last, to tell him that I had no desire to listen to him any further ; 
that, if ho clio.-e to tell me what he knew, I was willing to listen to it, 
but, if not, that I was not disposed to get it out of him by means of a 
corkscrew. He had not left two minutes before one of my officers in- 
formed me that Mr. Rateree desired to return and make a full confes- 
sion. Mr. Rateree then came back and made a very clear and connected 
statement, till he came to the point where he was to tell of this Ferris 



747 

busiucss, iu which he himself was wounded. Those facts I got from vari- 
ous sources, and I questioned him very closely on that point, and, 
with great difficulty, seemingly, to himself, he was induced at last to tell 
all he did. 

Q,. Are you not mistaken about Dr. Avery being in that party? 

A. I cannot be mistaken; I think a part of Ira Jones' Klan was 
there; Major Avery's, from Yorkville, and Dr. E. T. Avery's Klan, from 
Ebenezer. There were three Klans engaged iu that outrage. I ques- 
tioned him closely as to those who were present. 

Q. Were you informed by him of the cause of the shooting that night, 
and how it originated ? 

A. If I recollect, his purpose in going there, it was to get at a certain 
negro about the election. 

Q. Was there anything about a conspiracy to kill a man ? 

A. I did not hear anything about that. 

Q. Do you remember his mentioning the name of Tom Lowry in con- 
nection with that conversation? 

A. His name is very familiar, but I don't remember it being men- 
tioned on that occasion. 

Q. Was anything mentioned about a certain tree on the road, which 
Tom Lowry had passed in going to his plantation ? 

A. I don't recollect anything of that kind, and I am very sure it could 
not have been the case, for I should have recollected so marked a cir- 
cumstance. That fact would have fixed it in my mind. 

Q. Will you now recite the occasion of the shooting that night at 
Ferris' ? 

A, As explained by Mr. Rateree, it was this — and I repeat now only 
my recollection of the statement: A party, I think he said, of forty or 
fifty, or more, had assembled in the old field, near Ebenezer. In reply 
to a question as to their purpose, ho said they had no intention of inter- 
fering with so reputable and nice an old gentleman, but were going to 
take out a negro for something about the election. He didn't distinctly 
state what it was, and whether he knew or not, I could not gather. At 
any rate, he did hot tell. He said that the party went up to the house, some 
of them dismounted, and others remained at a little distance from the 
house; I don't recollect he stated whether ihe firing first commenced on 
the house or not ; my impression is that Ferris fired the first shot at them. 
He went on to say that some of the paity, without telling who, had gone 
into the yard, and attempted to get into the house for one of the negroes,' 
that a good deal of disturbance followed, in the course of which there 
was a considerable amount of firing from the Ku Klux party, in which 
he was wounded. Whether he said that Ferris fired first or not, I do 
not recollect ; but he did say that Ferris fired, and that one of the shots 



74 S 

struck liini in tlie clieek, and made quite a deep gas^h, and lie .<aid he in- 
stantly retired, for that had given hiai a sufficient dose of Ku Klux- 
ing. 

Q. Did you cause the Rev. Mr. Cooper to be arrested ? 

A. I made the affidavit upon.Avhich he was arrested. 

Q. Who ehe did you cause to be arrested in regard to that matter? 

A. No one. 

Q. Did you have any other person indicted ? 

A. I cannot say that, but I gave the information to the United States 
Attorney, and I suppose he has sent witnesses having that information 
before the grand jury, and I understand parties were indicted. 

Q. Who were they ? 

Mr. Corbin. It is a matter of record. The Rev. E. Cooper, Mary 
Avery, Lizzie Chambers and Kizzy Avery are indicted for the intimida- 
tion of Isaac A Postle. 

The prosecution announced the clo-e of the case on the part of the 
United States Government, and counsel were sent to the jury. 

ARGUMENT OF F. W. m'mASTER. 

3f'<y it please the Court and Gentlemen of the Jury : 

It has been said by a great man that, from very early times in Great 
Britain, a man was entitled to be tried, not by judges, but by his fellow- 
subjects. That great privik^ge of the jury, which is called the palhidium 
of liberty, is descended to all countries which have received their laws 
from England. England herself, however, in the management of her 
colonies, has departed from that mode of trial ; that is, they have fol- 
lowed the forms, but they have, in some cases, destroyed the spirit and 
the intention of the jury law, wliich was to allow citizens to have a full 
and fair investigation of their cases ; and in Ireland, until the last few 
years, the jury, instead of being the bulwark of defense of the rights of 
citizens, has been made the instrument of conviction. You may remem- 
ber the case of Mr. O'Connell, one of the greatest patriots, and one of 
the greatest men that Ireland ever produced. The authorities in Dub- 
lin convicted him, as they had convicti^d hundi-eds before. Mr. O'Con- 
nell was a Catholic. The questi(n) was between the Catholic and the 
Episcopal Church of England. In Dublin the juries were so arranged 
that every man who sat upon them Avas an Episcopalian. Mr. O'Connell 
Avas convicted. 

It was the custom of the English Court, wlienever there was a conflict 
between races or individuals, when justice could not otherwise be 
done, to select six men on one side and six on the other — as Mr. McCau- 
lay illustrated in one of his speeches. 



749 

Mr. Corl)iu, (interrupting.) I don't notice the defendant in Court ; I 
have just asked the counsel where the defendant was, and the reply I 
received was, that was for me to find out. 

Mr. McMaster. I repeat it now. 

The Court. Where is your client? 

Mr. Wilson. I understood, may it please the Court, when we adjourned 
on Saturday night, that Dr. Avery had gone to see his family, and that 
he would return to-day. 

The Court. Do you expect him back ? 

Mr. Wilson. I had no interview with him ; T expected him to return 
by the next train. I know nothing save from the iufoiniation I have re- 
ceived from Mr. INIcMaster. 

The Court. What time is the next train due? 

Mr. Wilson. At 2:30, I believe. 

The Court. Do you know where your client is, Mr. McMaster? 

Mr. McMaster. I beg the Court will excuse me from answering that 
question. 

The Court. Had 3'ou any knowledge from 3'our client that he was going 
away ? 

Mr. McMa?ter. I hope the Court will excuse me from answering. 

The Court. The Clerk will lay a rule on Mr. McMaster to answer the 
question or show cause why he should not be thrown over the bar. 

The Court (addressing Mr. Corbiu.) Do you propose to have the bail 
forfeited ? 

Mr. Corbin. I do, sir. 

Mr. McMaster. Will the Court allow me to ofFar a suggestion ? 

The Court. We would rather have you answer the rule. 

Mr. McMaster. I hope the Court will appoint a time in which I can 
answer. Your Honor will not, certainly, demand an immediate reply 
to a grave question of tiiat sort. I am to show cause why my name 
should not be stricken from the roll ; you certainly will give me time, at 
least until to-morrow, to consult with counsel, on a motion of such im- 
portance as that. 

The Court. Mr. Clerk, call the prisoner. 

Tlie Clerk called, in open Court, three times, the name of Edward T. 
Avery, to which no response was made. 

The Court. Forfeit the parties' bail, Mr. Clerk. 

Mr. Corbin then made the following motion : 

United States vs. Edward T. Avery et al. The defendant, Edward T. 
Avery, in the above entitled cause, having failed to appear and attend 
Court, from day to day, according to the stipulation of his bond, and 
having been three times called, and not answering, it is, on motion of 



750 

the District Attorney, D, T. Corbin, ordered, that said boud be forfeited, 
and that scire facias be issued thereon. 

(Signed) GEO. S. BRYAN, 

U. S. Judge for the District of South Carolina. 
January 1, 1S72. 

Mr. Corbin said : There is some little uncertainty in the mind of the 
Attorney General and myself, as to the proper course to be pursued. 
We have exhausted so much time, trouble and expense, in the prosecution 
of this cause, that if it is permissible to go to the jury with it, we should 
like to do so. Whether, if we proceed to a conviction, the proceedings 
would not be invalid, is somewhat uncertain. Before putting the case 
bsfore the jury, for their conviction (n* acquittal, we would ask the Court 
to adjourn, to give us time for consukation. 

The Court then adjourned until Tuesday morning, at 11 o'clock. 



Columbia, S. C, January 2, 1872. 

Mr. Cliaraberlain said that, since the adjournment of the Court yester- 
day, the District Attorney and himself had examined the question, as 
fully as time had permitted, as to the. proper course to be pursued upon 
the flight of the prisoner, in the case now before the jury. There was no 
doubt that in cases of felony the prisoner must be i>resent to plead to 
the indictment, to confront his witness, and to be present at the rendi- 
tion of the verdict. In cases of misdemeanor, the prisoner may, under 
certain restrictions, be allowed to plead by attorney, and be absent even 
from the judgment and the passing of sentence. 

The present question was whether the prisoner, after he had pleaded 
and had conducted his case thus far — after confronting his witnesses and 
examining them in his own behalf — whether the prisoner, in his own 
wrong, and of his own motion, and with the obvious purpose of escaping 
from the trial and jurisdiction of the Court, could absent himself and 
flee from the officers of the Court. 

The authorities furnished one example precisel}'^ similar to the pre- 
sent case. Instances were on record where a request had been made 
by a prisoner that he might not be compelled to be present in Court 
to listen to tlie verdict, and this in gratification of his own feelings ; 
but, in such cases, the Courts, in England and in this country, insisted 
that he should be present. 



751 

111 such cases, the prisoner was witliin reach of the Court, and could, 
on its order, be brought to stand before the jury when rendering their 
verdict. 

The case which appeared exactly parallel to the present one oc- 
curred in the State of Ohio, when the prisoner was being tried on a 
charge of counterfeiting. In the progress of the trial the prisoner ran 
away, and the precise question involved in the present case arose — ccm 
the trial proceed to a verdict f 

Mr. Chamberlain read the passage from the chapter, in " Bishop's 
Criminal Procedure," on the " presence of the prisoner in Court," Sec- 
tion 687, showing that, in the case of felony or treason, the prisoner 
must be present in Court ; but that where the prisoner, in his own 
wrong, voluntarily runs away and escapes beyond the reach of the 
officers of the Court, the Court may proceed to a verdict. 

Mr, Chamberlain then referred to 1st Bailey, p. 651, the State vs. Mc- 
Kee, presenting a case different in its circumstances from the present, but 
tending conclusively to show that the jury should not be discharged with- 
out rendering their verdict. 

In the case referred to, the defense had concluded their argument, and 
it came to the knowledge of the Solicitor that the foreman of the jury 
charged with the case had said that he would not convict any white man 
for the killing of a negro. The Solicitor claimed the right of entering 
a nol jyros., on account of the statement made by the foreman of the 
jury. The question arose whether, under these circum-^taiices, the jury 
could be discharged, or whether it must proceed to a verdi".t That 
brought up the whole question of the circumstances under which a jury 
could be dischai'ged. The case was argued by the Circuit Judge, and 
taken by appeal to the Appeal Court, where the decision was rendered 
by Judge O'Neill. 

The decision of the English Courts, of the Federal Courts, and of the 
State Courts, were given, and the conclusion reached that only on the 
following grounds could a jury be discharged: First, the illness of tha 
prisoner; second, by the illness of one of the jury or Court ; thirdly, the 
unavoidable absence of one of the jurymen; and, fourthly, the impossi- 
bility of their agreeing on a verdict. 

If that be the law, Mr. Chamberlain continued, they were slmt up to 
the necessity of giving this case to the jury; there was no ground upon 
which this Court could discharge the jury at tlie present stage. The 
practice of the English and American Courts insisted upon the corporeal 
presence of the prisoner, and if, after being pi'esent, and pleading and 
listening to the evidence for and against him, he made his flight, there 
was sufficient authority for the jury to })roceed to the verdict. 

As to the other question, whether this prisoner could claim a forma^ 



752 

acquittal in case of the discharge of the jury at the present time, there 
was no doubt that he could not make that plea, even were the jury now 
discharged. The decisions of the Supreme Court upon that point were 
clear that it is a decision of the jury, by acquittal or conviction, that con- 
stitutes once in jeopardy. 

Mr. Wilson. In this case I deem it proper, and feel it my duty, to leave 
the question entirely with the Court. 

Judge Bond. We think it prosier to proceed with the trial, and when 
the verdict is given any question may be argued, on motion, before judg- 
ment. 

ARGUMENT OF MR. m'mASTER. 

Mr. McMaster continued his argument for the defence as follows: 
Yesterday I described to you the intention, spirit and powers of the 
jury, and attempted to show that in Ireland, in all the State cases, that 
the jury, instead of being the palladium of liberty, was an engine of 
oppression. In our country, that professes to have more freedom even 
than Great Britain, it is unfortunate that there has not been a provision 
made by Congress to provide against similar outrages to those which 
have been perpetrated in Ireland. 
/ What do we see here to-day? The law requires tliat in making up a 
jury for the Circuit Court, that there shall be one hundred persons 
selected by three as-essors from different parts of the State, good, respon- 
sible, intelligent and n^liahle men, wlio are fit to be jurors, and from them 
a certain number shall be drawn to serve as the jury of this Court. It 
is well kn.own that the proportion of persons entitled to vote, and c(m- 
sequently able in this State to sit on the jury, is in the j)rop()rtiou of two 
white to three colored persons. D;)es this jury exhibit that i)r()2:)i)rtion ? 
There is another fact that must strike every imi)artial observer, ami that 
is that this is a political question before us, in some of its aspects. We 
have been told by a distinguished authority that you can count the white . 
Radicals in South Carolina on your lingers, but the smaller number of 
whites that are on this jury are nearly all of them of that class. Now, 
gentlemen, I want to be very plain and honest with you, for I consider 
that you occupy a very responsible position, a position that w-ould require 
great effort for y<>" to vindicate justice and do justice. . This jury is in- 
finitely worse than a jury of Episcopalians trying the great Irish orator 
and patriot, who was a Catholic. It is a great deal worse, for there are, 
undoubtedly, on this jury, eleven men wlio are strong partisans, Avho are 
opposed to my client, Mr. Avery, in {)olitical faith. But it does not rest 
there. I see here nine colored n)en selected by the prisoner, from the 
panel, as the best, when the very outrages with which my client stands 
charged were perpetrated on colored men. Can you be other than 



753 

naturally iudignant at these outrages ? Will not your hostility be natu- 
rally greater than a white man would feel ? Therefore it is that I say 
the world has never seen a greater outrage than in the jury that is now 
trying this question. If Mr. Macaulay said, with regard to those Irish 
trials, that in every case of indictment for State offences there was a 
reasonable certainty of a verdict being against the prisoner, in this case 
the chances of such a verdict are increased a hundred fold. 

But, gentleman, it seems to me that if I were a colored man I would 
rejoice in the opportunity of sitting on such a jury, I would rejoice in 
the opportunity of exhibiting to the world that I was for justice and for 
freedom ; that the black man, despised as he has been in the past, has 
now put himself in a position where he can vindicate his character and 
show that a black jury may be superior to an Irish jury. He has an op- 
portunity of rising above his prejudices, and doing justice not only to a 
political ouomy, but to a white'man, who is charged witli being connected 
with a conspirai^y whose object was to drive the black man from the soil 
of South Carolina. G-'utlemen, that is your proud position to-<lay. There- 
fore, it is I beg and entreat you to lift yourselves above prejudice, and do 
justice to a political enemy, so that in future times your conscience can 
never reproach you, and that the world may say of your action, it was well 
done. 

Gentlemen, I know I stand here to-day under the shadow and displea- 
sure of the Court; I stand here suspected, possibly, in Dr. Avery's ab- 
sence. I do not care, at the present moment, to vindicate myself. This 
is not the fitting op})(irtuuifcy. I atn aware that I stand here lighting 
against a prt^judice in your minds in favor of the guilt of Dr. Avery, from 
the fact that he has run away. Gentlemen, I beg you to be careful how 
you allow that prejudice to rest in your minds. If you would judge the 
case fairly, I ask you to put yourselves in the position of my clien' • 
ask yourselves what you would have done under sinjilar circumstance^ . 
That, I sa>, is tlie only way in which you can render a fair judgment. 

Now, Mr. Avery has gone ; I hope he is in a country that is freer 
than this by this time ; he gave his bond to attend this Court ; he came 
down here bold, defiant, and confident, as he always is ; ready to fight any 
antagonist in the daylight, never in the dark; he came here with confi- 
dence, conscious of his own innocence, but he did not know the jury that 
was to try him ; he saw that at least eleven men out of the twelve v,'ere 
strong partisans and politically hostile; but such was his confidence in 
his cause, that in the selection of the jury, when a juryman was announced 
to be connected with the I\e{)ublicau paper of this place, instead of re- 
fusing that juror, he said, " I like that man's face, I believe he can dome 
justice." The case went on, and he was horrified and astonished at the 
tales, the surmises, the suppositious, and positive gabble the prosecution 
48 



75-1 

intrnduced, and b}- which they sought to give horror to the scenes, and to 
show how terrific they were ; and when he saw the desire of the prosecu- 
tion to connect him Avith the horrid and unnatural crimes committed by 
the offscourings of creation, by the coal-field men of York County, men 
that were never of any use to any country, either in times of peace or in 
times of Avar, Avhen the desire was manifested to inflict upon a gentleman, 
of York District, of v>'hich he AA'as a good representative, such a stain, and 
stamp him Avith inl'amy ; and Avhen he knew that three months would not 
roll by before the parties who committed this atrocious outiage will have 
honor enough to vindicate him from all complicity; Avhen this fact canje 
to his knowledge, from one of the men Avho participated ; and when he sav/ 
the probability of ten years in a penitentiary, I ask, can any man, under 
such circumstances as these, blame him for going "where the woodbine 
twiueth ?" Put yourselves, gentlemen, in his place, and say what you 
Avould have done. 

His Honor, gentlemen'of the jury, in the discharge of his duty, put an 
old man in the penitentiary, for five years, because he did not exercise 
his power, and stop these outrages. Great goodness ! is such a tiling pos- 
sible? How is it possible, in a country desolated by war, where the 
people are so impoverished as to be unable to leave their place, how can 
men be held responsible for the actions of an entire community ? Are 
these men to be punished for not going out of their AA'ay to stop Avrong 
doings and outrages, Avhen every sentiment of- honor and justice is being 
outraged in South Carolina; Avhere bribery, corruption and stealing exist, 
from the highest to the lowest ofiScer of the State? Has not the de])t of 
the State been increased, in three years, from five to at least twelve mil. 
lions of dollars, accordiug to the iast showing? And yet not a school 
house built, not a court house built, not a railroad built; nothing done to 
elevate the race, but everything to impoverish and to put shackles upon 
our industry and commerce. The Court said to this old man, " You 
should have stopped these things," that did not even occur in his Dis- 
trict ! But this seems to have made no difference ; you should haA'e 
stopped it, though it happened twenty miles aAvay. You should haA'^e 
knoAvn it, and you should have prevented it. Does not this shoAV how 
difficult it is to judge of the State of South Carolina, by a knowledge of 
what may exist in Florida or Maryland ? We have not yet simmered 
down into a condition of order, quiet and peace, from the recent war 
which devastated our State. War permits license and outrage that 
would not be tolerated in time of peace. It is, therefore, impossible to 
judge about the condition of South Carolina by what may be found in 
New York, Pennsylvania or Maryland. 

Now, I would call your attention to the class of witnesses by which it 
was sought to convict my client. I do not accuse any of joositive lying; 



700 

but witnesses have been upon the stand vv'lio are incapable of telling the 
truth. They speak of events that happened many months ago ; their 
memory is confused ; facts are intermixed ; imagination often supplies 
the plea^f fact, and their whole statement is confused and utterly unre- 
liable. 

Let us look at the alleged crime with which my client stands charged.. 
He is charged with raiding on Sam Sturges, and for whipping Postle, on 
the night of Friday, the 1st of March. He is charged w^ith being a Ku 
Klux. He undoubtedly belonged to an organization in 1868, as did al- 
most everybody in that section of country at that time. Now, I don't 
care what they called the organization then — Ku Klux or anything else 
— it was not illegal, no more so than the Union League, and there was 
no law against it. A man might have been a member of that organiza- 
tion, and yet have nothing to do with the outrages that have been per- 
petrated since the Enforcement Act of eighteen hundred and seventy ; 
of these he is " Scott free." Mr. Gunthorpe says that Mr. Avery was 
initiated in 1868; admit it; Mr. Gunthorpe says there was no constitu- 
tion, that he knew of, and there has been no constitution proved to the 
organization that existed in 1868. The purpose of that society, as he 
says, was " opposition to Radical misrule.''' It was not illegal, for the 
thirteenth, fourteenth and fifteenth amendments, and the Acts for their 
enforcement, were passed after that. The ergauization that then existed 
did not oppose these amendments, but only spoke of opposition to Radi- 
cal misrule. We have, moreover, proved, by a number of witnesses, 
that this organization broke down by its own weight. It had subserved 
its purpose ; and, besides, it has been proved that it w^as merely a society 
for home protection. It may have been foolish ; there was no occa- 
sion for alarm ; for the disposition of the colored man is not to hurt any- 
body. 

I protest, in the name of humanity, against the action which has been 
exhibited by the prosecution in this case. I utter my solemn protest 
against it. I come to you, gentlemen, to vindicate justice ; and you, 
gentlemen, [addressing the counsel] before many months have rolled 
over your heads, will say that I was right. You, gentlemen of the jury, 
I trust, will bear in mind that it is far better that mauy guilty men should 
escape than that one innocent man should suffer ; save the innocent, 
punish the guilty; show that you can appreciate justice; show that you 
can rise above prejudice ; show that you are worthy to be free, and 
worthy to be jurors in any case, wdiether trying white or black. But I 
imagine that five years will not roll by before my friend, the Major, will 
repent of any such resolution ; for I cannot but believe that he will 
arrive at the conviction that the present measures are inhuman and un- 
just. These measures cannot surely be carried out in a spirit of reven^o ; 



756 

revenge is an unholy passion, Gfntlemen, show that you are equal to 
the position; do justice; vindicate your character ; show that the ])lack 
man can rise above prejudice ; show that they deserve to be the pillars 
that support the country ; that they deserve to be on the jury to help 
support the palladium of liberty. 

Gentlemen, there may be some of you who know that I sympathize 
with Mr. Avery. Let me say that I hate a low, vile man, that does his 
deeds of darkness in the night, as I rejoice in a brave, open contest, and 
a fair surrender; and I believe in then shaking hands afterwards, as brave 
men always do. I know, gentlemen, that we cannot judge of military 
men as we can of men of peace. Men who are educated to conditions of 
strife and war are unlike men of peace. The conditions of war are un- 
like the conditions of peace. But your military men, even in tiine of 
peace, are somewhat governed by their notions of war ; they seem to 
think it necessary that people should suffer — that even women and chil- 
dren should suffer sometimes — assuming it to be necessary in the general 
progress of events. It may be that the sympathies of heroes who parti- 
cipated in the war of the Piegan Indians may have justified the ripping 
i>p of peer Indian women, and decapitating Indian children, and filling 
them with fear and terror. -They seem to argue that it did not make 
any difference if an old negro woman and a kind and intelligent nurse 
should be charged with perjury, and indicted and thrown into prison. 
It makes no difference if a man like Mr. Avery, known and respected in 
his community, even should he be innocent, that he should be punished* 
The higher the standing, the more striking the example. How delight- 
ful it would be to have Wade Hampton as a vicarious substitute for all 
the gentlemen of the South, and put him in the Penitentiary for ten 
years ! 

It is said that oppression sometimes makes a wise man mad, and it 
may have made him mad; for has he not had dire oppression in his case, 
as he lay in a crowded, filthy, poisonous jail, incarcerated in a cell many 
days while lying on a sick bed, bleeding fnun wounds and paraly/:ed with 
cold? It is, then, in the confidence of his innocence, that he sends for 
Uncle Postle, who had charged him with whipping him ; sends his wife 
to find out Postlie, and talk to him. The wife's pastor intercedes for the 
innocent husband ; the old servant and faithful nurse, too — and all this 
is construed into additional conspiracy. An old, faithful negro woman, 
fiixty-six years of age, is charged with intimidating Postle ! Gentlemen, 
is not that cruel ? is it not oppression? I had hoped that the Govern- 
ment prosecutor would have thought better than to proceed with such an 
act as that, but there is not a particle of any such proof in God's world. 

Mr. MeMaster then adverted to the testimony of the Rev. Mr. Cooper, 
contending that there was no attempt to intimidate the witness Postle, 



757 

and that all his assertions to that effect were but the creations of his own 
imagination. Mr. McMaster dwelt at some length on the testimony of 
Lizzie Chambers and Lizzie Avery, contending that they established, 
beyond controversy, the fact that Mr. Avery was at home on the night 
of the alleged raid. 

" Gentlemen," he continued, " I know I have made out my case to 
any unprejudiced jury ; and I know that n6 jury on the face of God's 
earth, outside of such a jury as we are obliged to have here, could con- 
vict, with such evidence as is before you ; and I beg of you not to let 
the absence of Mr. Averj'- affect you; do him justice, for he is as bold, 
kind-hearted, noble man as ever walked on the face of the earth ; he 
fights no man in the dark, but he is always ready to fight any man, 
with sufficient cause, in the day time. But he is put up here to indulge 
ia midnight raids. He is known in that entire range of country to be 
an honest, bold and brave fnan. He is a man to fight against odds ; not 
to raid on an old man like Sturges. And yet these poor, ignorant and 
creduli)us witnesses connect him Avith that conspiracy, and speak of recog- 
nizing his lame hand, under circumstances that make it an ntter impossi- 
bility. He is described by witnesses as adjusting the rope over their 
nocks, when the condition of his hand and his utter inability to use it in 
such a way shows the entire inconsistency and impossibility of much that 
Avas testified to i^ this respect. Gentlemen, you cannot rely upon testi- 
mony of this character; besides, it is not in accordance with the admitted 
character of Mr. Avery. You can tell, from his impetuous look, that, if 
he went on a raid, he would go in an 'entirely different manner. If any 
fighting was needed to be done he would have done it ; but thes '. raids 
are not in his style. If he had been a Ku Klux, he would have been 
known in that whole country as such. Weak-minded persons may Vv'ell 
have become alarmed. Mr. Gunthorpe left that neighborhood, and he 
tells us that, though, on one occasion, he returned for a day, he heard no 
more of it. Had it been in active operation, he would most certainly 
have known of it. That is my reply to Dr. Avery being connected with 
this alleged conspiracy. The truth is, there was no harm in it. The 
idea that he hung that poor old fool Sturges and whipped Postle ! You 
cannot convict Mr. Avery of such an offense, unless you are certain he 
Avas there; and I hope you v/ill put far from your minds the idea that he 
was there. 

ARGUMENT OF MR. WILSON. 

May it pleai^e the Court and Gentlemen of the Jury : 

Though the departure of my client has given me a sudden and unex- 
pected weight to carry in making his defense, it shall not deter me from 



758 

an earnest effort to discharge my ^vllole dut}'-, and I hope yon, gentlemen 
of the jury, will not allow it to unduly prejudice your minds, for it is not 
necessarily a proof of guilt, but may reasonably be attributed to a feeling 
of despair that he was drifting to that mcelstrom from which none! none! 
have as yet escaped. 

Dr. Avery is indicted for a general conspiracy to violate an Act of Con- 
gress, passed May 31, 1870 ; and what is the first proof adduced by the 
Government? That he was a member of an organization in 1868. Does 
it not strike you, gentlemen, as something beyond the range of possibil- 
ity, that a man can conspire in 1868 to violate a Section of an Act which 
was not passed until nearly two years afterwards. Besides, it is proved 
in the case that that organization was solely for home protection. I ad- 
mit that there were many features in this organization of 1868 to remind 
you of the Ku Kluxing organization of 1870-'71, that has been proven to 
have had existence. For instance, that this order in 1868 bad an oath, had 
disguises, and the members were required to be armed, in which it re- 
sembles the "Ku Klux organization, are clearly proven to have existed; 
but while there are those resemblances there are just as marked differences. 
There was secrecy, it is true ; there were disguises, and there was an 
oath ; but it does not follow that it was anything more than an organiza- 
tion for self-defeuse. So much for any argument that may be drawn 
from the character of this organization of 1868; but the Government 
does not stop here, and I am very far from being through with the argu- 
ment. The Government says : "You were on a raid, sir, on the night of 
Friday, the 1st of March ; you were in a Ku Klux gown, committing acts 
of atrocity upon old men, women and children." Gentlemen, I admit, 
if he w^as thereon the night of the 1st of March, 1871, it is proved that 
he belonged to the organization. Now comes the great question in this 
case : was he there ? 

The first witness offered by the Government was Abrara Broomfield, 
an old man ; a man who seemed to be deaf; it was with difficulty tliat he 
could hear me ; I had to raise my voice to a pitch that would fill this 
whole building to make hira hear me, although he was standing within 
a few feet of me. What is his testimony ? He was sitting in the fence 
corner, within ten steps of him, and he heard Dr. Avery's voice. It is re- 
markable that he could have heard Dr. Avery's voice ten steps off when 
it was so difficult for him to hear on that stand. Next comes his wife, 
Eracline Broomfield. She doesn't swear by his voice, but she knew him 
by his beard. I think, gentlemen, you would not convict any man be- 
cause he had a beard that the witness thought was his, for many beards 
are alike, But she says she knew his hand — she saw that hand when Dr. 
Avery had the line with both hands putting it over Sam Sturges' neck. 
Now, what does Sam Sturges swear? He swears that the man that put 



759 

the rope oyer his neck was a black man, and his name was Howard 
White. Now, geutlemeu, she said sonietliing else, that he grasped it with 
both hands. You felt that hand, you saw it, you hoard what Dr. Talley, 
a distinguished physician, of Columbia, testified to, that it was perfectly 
useless — no muscular power there. It was impossible for him to have 
grasped that rope w^ith that hand. The next one is Harriet ,PostIe, the ^ 
wife of Isaac A. Postle. She says she knew him by his make, and by 
his hand. She caught his hand ; that Dr. Avery had hold of the rope 
in both hands, and while she was trying to pull it down, she caught the 
hand. Dr. Avery could not have had the hand in that position. The 
next witness is Isaac Postle. He says he knew Dr. Avery by his being 
common in his talk. Well, gentlemen, I don't think that any jury 
would be satisfied that it was Dr. Avery upon that sort of evidence. 

Well, now, here is the whole testimony, and if you convict Dv. Avery, 
you must do it upon that testimony ; and if our defense stopped here, 
would you feel that it was right, upon such uncertain, flimsy and con- 
flicting, contradicted evidence as' this, to send a citizen of South Carolina 
to the felon's cell and the ielon's doom? would your duty allow you to 
do it? Would the practice of the juries of the Anglo-Saxon race of the 
last two hundred years, wherever that race has been known ; would the 
pactise of your own countrymen, since you have beeu clothed with the 
right of American citizens; would you find precedents there to do that, 
where the evidence is so conflicting, so uncertain ? But, gentlemen, we 
don't stop here ; has not Dr. Avery proven to your satisfaction, that ou 
the night of the first of March, 187J., Avhen they say he was on this )'ai<l 
of atrocity, this contemptible cruelty, this trampling babes under feet, 
and mashing the heads of women, outrages of disgrace to the human 
race; when they say he was upon that low work, he was by the side of 
his Avife and sick children. You saw Louise Chambers; you saw how 
she testified, and I must say, that never, since I have been at the bar, 
have I seen a witness subjected to so thorough, so protracted an examina- 
tion ; and I have never seen a witness come out of it more thoroughly 
intact and unscathed. There was no ingenuity that the distinguished 
counsel could exert, that could make her contradict hersrlf. She says, 
that, ou that night, when Samuel Sturgis and Postle were raided upon, 
that Dr. Avery was at home ; that he went to bed about between nine 
and ten o'clock ; that his child was sick ; that it was her habit to sleep 
in one of the outhouses ; but that night she slept in the house ou account 
of the sickness of the child. Mr. Cooper tells you that he knaw the 
child was sick ; old Kizzy tells you that the child was sick, and Louise 
was in the house that night. 

Gentlemen, I think the evidence of this alibi is so conclusive, that you 
cannot entertain a reasonable doubt about it ; and I would respectfully 



760 

pay to you, that, if there is a reasonable doubt left upon your niiiicl.s as 
to Dr. Avery's gailt, then, on your sworn duty, you are bound, as? a jury, 
to render a verdict of not guilty. 

AEGUMEKT OF ME. COKBIN. 

Maxj ii please the Court and Gentlemen of the Jury : 

The case before you is certainly a remarkable one. One feature in it, 
at least, it has never been my experience to meet with before any Court. 
We have, in the regular course of the administration of justice, indicted 
a defendant who has been informed of the charges against him ; he has 
])een summoned to answer; placed before the Court and the jury; enters 
his plea of not guilty; sits by and selects his jury; sits by and hears the 
testimony ; and then, in the darkness of night, flees. Now, gentlemen of 
the' jury, I say to you that, in my judgment, that is a fact to be consid- 
ered by you. It is something that has occurred before your eyes, in the 
j)iesence of the Court; and I think, gentlemen, and I believe, that you 
will agree with me — and so will the rest of mankind in his County or in 
the country anywhere, when they hear the fact — that a flight under such 
circumstances is a confession of guilt. 

But, gentlemen, we do not rely simply upon the conduct of Dr. 
Avery. Without noticing the argument of my friends on the other side, 
except incidentally, I propose to call your attention to the testimony. 
First, has this offense been committed? Second, who committed it? We 
showed to you the existence of an organization in 1868. Dr. Avery, by 
his counsel, is admitted to have been a member; an organization of 
which it is said, that "any member divulging or causing to be divulged 
any of the foregoing obligations, sluill meet the fea)ful penalty and trai- 
tor's doom, which is death ! death ! ! death ! ! ! My friends on the other 
side talk about a peace society. Their witnesses say, ." it was a society 
for mutual protection, but we didn't see any use for it, and didn't go any 
more." 

There is a little piece of testimony that the, defendant's counsel in- 
sisted in drawing out from Colonel Merrill ; they insisted upon his telling 
what John Rateree, a member of the Klan of 1868, told him, and he 
says John Ratcree, of Eock Hill, told him that Major J. W. Avery, the 
Chief of Yoi'k County, Dr. Avery, his brother, and Iredell Jones, Chief 
of the Klan at Rock Hill, went on the raid on Mr. Ferris with their 
Klans, and Governor Fewell testifies that when they came to his door 
he knocked them down with a fire shovel, and Dr. Avery was one of the 
m n that he knocked down. Gentlemen, don't we find in this organiza- 
tion of 1868 — this conduct of the three Klans in 1868, of Mhich this 
defendant was Chief of one — a strong disposition to go on raids. Don't 



761 

we find this wonderful representative — this gentleman — may God spare 
the name — going into this same business? Don't we find him covering 
himself with a mask and sneaking around in the night with his Klan and 
attemj)ting to shoot colored people in 1868 ? Is this an open fight — is 
this a broad daylight fight, where gentlemen meet gentlemen, shake 
hands and shoot at each other, as the counsel on the other side said was 
the conduct of Dr. Avery? I tell you, no! gentlemen. We find this 
scoundrel — this coward and murderer — this everything that is bad — all 
demonstrated by their own testimony— proving to the world that he is 
just equal to these Ku Klux operations. 

Gentlemen, you have heard the testimony of Lawson B. Davis, who 
joined this infixmous organization in 1870. He says he was told that it 
was a society tor mutual protection. Gentlemen, was there ever a word 
so abused; so entirely perverted. Was there ever damnation so foul, 
covered up by as pleasant an appellation as these words, "mutual pro- 
tection," "home protection ?" Mr. Davis says when he got inside of the 
Klan he found that it was an organization, fur what ? To protect any- 
body ? No; but to destroy the oj)positioa party; first, by visiting and 
warning the members; second, whipping them; third, compelling them 
to leave the country ; and fourth, killing them. 

IMr. Gunn says the object of the organization was to kill and whip the 
white and colored Iladicals until the Democratic party should be trium- 
phant in that County. Go up in York County and call the name of 
Charley Goode ; will anybody answer? Go and call the name of Tom 
Eoundtree; will anybody answer? Call the name of Anderson Brown; 
will anybody answer ? Cull the name of Jim Williams; will anybody 
answer? No, gentlemen, these prominent colored men are dead, mur- 
dered by the Ku Klux Klan. Gentlemen, if the organization ever ex- 
isted, to be handed down through all time as excelling in its atrocities 
the savages upon our frontier, or the conduct of the people of India, or 
the atrocities of the savages of the is ands, that organization is the Ku 
Klux Klan. 

Now, gentlemen, what is the evidence that connects this distinguished 
son of South Carolina? — I say distinguished in derision, gentlemen ; I 
don't think he is distinguished except for his crimes. What is the evi- 
dence? You have the first evidence in his flight. If he had been an 
innocent man, he would have sat here, and if you found him guilty, he 
vrould have borne it ; he would have attempted to show to the President 
of the United States that he was not guilty; and if the evidence was 
forthcoming in three months, as was said by the counsel on the other side, 
there is no question that he would have been set at liberty. But, instead 
of sitting here like an innocent man, and awaiting the result of his trial, 
he flees in the night, God only knows where. 



762 

Sam Sturges says he knew that little crooked hand of Avery's. Could 
he be mistaken ? Dr. Avery has presented his hand to you, for which I 
thank his counsel, and they have put a physician upon the stand to swear 
that that little crooked hand is permanently fixed in one position ; that 
his fingers are doubled, and that it will never change its position, whether 
it is up or down. 

Mrs. Broomfield says, " I saw that little lame hand, and I at once knew 
it ; and I recognized his whiskers." What is the next proof about him ? 
Why, here is old Postle, au old man, celebrated for his piety. He is a 
preacher, and his demeanor upon that stand, gentlemen, in my judgment, 
showed that he was a great deal nearer following that Master — " Christ 
and Him crucified" — than some other people who were upon the stand. 
He says, (mind, he is not a swift witness ; he does not say I know Dr. 
Avery was at my house, but) " I think he is the man ; I recognized his 
voice, because it was a common voice to me ; I had heard it so often," 
and when he says "we are men of peace" — after they had hung the old 
man up and taken him down — " we are men of peace and justice" — hang- 
ing a man without judge or jury — and " we are men of peace and justice," 
" I knew his voice." 

The other side send a minister after this man ; Mrs. Avery goes after 
him ; they get him to swear to an affidavit written by the reverend gen- 
tleman who never preaches against Ku Kiuxism, and the affidavit says, 
in effect : " If your evidence is true, then I am mistaken." 

What does Postle's wife say ? She knew Dr. Avery by his hand, which 
she grasped. I tell you, gentlemen, no man or woman living, who has 
grasped that little lame hand, would ever be mistaken about it. 

But, now, let us turn to the other side. Why, the gentleman on the 
other side [Mr. McMaster] said that you are the most v.-onderful jury 
that was ever got together ; that such a jury is not recorded in the his- 
tory of time. But he hopes that you will be able to lift yourselves on 
this occasion and — what? "Do justice!" In God's name, gentlemen, 
that is just what we want you to do. But, gentlemen, he didn't intend 
it in that way; he intended it as a slur upon you, and everybody so un- 
derstood it. You are all, he says, members of the opposite political 
party to which this gentleman, his client, belongs ; hence, you cannot do 
him justice — you are prejudiced. How does he know that, gentlemen? 
I suspect that he weighs you in his own insignificant balance ; he judges 
you by himself. I say to you, gentlemen — it is not harsh for me to say 
so, when a gentleman can stand up before a jury and talk to them as he 
talked to you — that, because you are of the opposite political party, (and 
I don't know whether you are or not,) you cannot do justice to his 
client; that it is .a political question. Great God, gentlemen, is it poli- 
tics to kill people and to whip people ? If it is, let us send this man to 



763 

the Penitentiary, who works politics in this way, and annihilate the po- 
litical party that attempts to enforce its principles in this way. 

Now, gentlemen, we come to another interesting matter, in which the 
ministers are engaged. I wish I could find the ministers of York County 
in better company. It is only a day or two since there was a long article 
in a New York paper, defending the Ku Kluxing in York County, from 
Rev. Mr. Latham, of York County. Only a day or two since, we saw a 
long letter in the Charleston News, from a Rev. Mr. Winkler. He says: 
" To anybody who knows the facts about this Ku Klux business, he 
would not be true to his God or his country if he wished well to these 
prosecutions." What do you think of a minister of this j<:iud ? What 
have you to say for a man who preached Christ and Him crucified — had 
a commission for that — but who says : " I never said a word against Ku 
Kluxism. Whipping, killing and murdering could be done, and I say 
nothing about it, because I don't preach politics ?" Is there any sur- 
prise that Ku Klux could exist in York County ? 

The question of whether Di'. Avery was in this conspiracy is to be de- 
termined by you, by the testimony given you in this case ; and I think, 
gentlemen, that I am not doing myself injustice or you wrong by saying 
that I thiuk you will agree with me that the testimony in this case, and 
the conduct of the defendant and his counsel, show you, equally, that he 
is guilty. 

THE CHARGE AND VERDICT. 

The charge of the Court was as follows : " Gentlemen, you have heard 
the Court's directions to the other juries, and the Court does not think it 
necessary to give you further directions." 

The jury retired, and, after the lapse of fifteen minutes, returned a 
verdict of " Guilty." 



Part VIII. 



CONFESSIONS AND SENTENCES. 



A large number of parties, against whom indictments were found, plead 
guilty. Nearly all of these parties were examined by the Court as to 
their connection with the Klan, and received sentences ranging from a 
few months' imprisonment to five years and a fine. The proceedings were 
as follows : 

Columbia, December 28, 1871. 

SYLYANUS, WILLIAM, HUGH H. AND JAMES B. SHEARER. 

Sylvanus Shearer, William Shearer, Hugh H. Shearer and James B. 
Shearer withdt-ew their pleas of not guilty, and entered a plea of 
guilty. 

Q. (by Judge Bond to William Shearer). What have you to say to the 
Court iu mitigation of your punishment? 

A. I would like you to be as easy on me as possible. 

Q. What reason is there ? 

A. Because I did't know anything about this thing that night. 

Q. What night? 

A. The sixth of March. 

Q. How camo you to be present at that place? 

A. Chambers Brown sent me word to meet him that night ; that he 
was going to have a meeting; he wanted to initiate some men ; and me 
and my brothers went. 

Q. What did you go for? 

A. We went for this meeting ; he sent for us to go to this meeting. 

Q. But you were not members of the Klan ? 

A. No, sir; but he said he wanted to take us iu that night. 

Q. What did you let him take you in for? 

A. Well, everybody else was in, and I didn't exactly feel safe without 
I belonged to it. 

Q. You went on the Jim Williams' raid? 



765 

A. Yes, sir ; I was on that raid. 

Q. What part did you take in that raid ? 

A. Didn't take any, sir. 

Q,, Where were yon when Jim William?^ was hung ? ^ 

A. 1 was with the horses. 

Q. How many people were witli the horses ? 

A. Well, I don't know ; there was seyeral. 

Q. Where was your brother ? 

K. All four of us were there. 

Q. All four of you with the horses ? 

A. Yes, sir. 

Q. Who went wirfi the party that went up to the house ? 

A. I cannot tell you, sir; I don't know; don't know any of thera. 
They were ail disguised. I didn't know any of the party. 

Q. Were you disguised ? 

A. No, sir. 

Q,. What else was done that night besides hanging Jim Williams? 

A. They taken some guns as we came on back. 

Q. Whip anybody ? 

A. No, sir ; not to ray knowledge. 

Q. That the only raid that you were on ? 

A. I was on a little raid after that — around by Squire Brown's. 

Q. How came you to go on that one? 

A. We had a meeting at Sharon,,and some of them proposed a little 
spree, and I just went on with the rest. 

Q. What did you do? 

A. Didn't do anything, sir, as I know of. They came around and 
made Charley Russell dance some; that is about all I knew. Didn't go 
to do anything — just merely some proposed to go on a little spree, as we 
was out. 

Q. Who is Charley Russell ? 

A. He is a freed man, sir, that lived at ]Mr. Ramsay's. 

Q. What had he been doing? 

A. Nothing at all that I knew of. 

Q,. Your brothers with you on that raid ? 

A. Yes, sir. 

Q. What other raid have you been on ? 

A. That is the only one; the only raid, sir, that I believe that I was 

OJl. 

Q. What do you do for a living? 
A. Well, I work for it. 
Q. At what ? 
A. Farmiua:. 



766 

Q. (To Svlvaims Shearer). What have you to say for yourself? 

A. I want you to be as light as possible, 

Q. What puuishmeut do you think ought to be meted out to a man 
V, Ho would thrash half a dozen black people in one night for noth- 
ing? 

A. I don't know ; it ought to be right smart to them that done it ? 

Q,. You helped ? 

A. No, sir. 

Q,. You gave them all the countenance you could. You went with 
them, to be ready if anybody should interfere with your plans ? 

A. I went along; but I didn't kuow where they were going. 

Q. What do you think ought to be done to a man who w-ould come to 
your house and take you out of your bed, at night, and hang you ? 

A. Well, I don't know what? 

Q. What sort of an excuse do you think it would be, if somebody who 
went along with him had urged that he only held horses, and didn't ac- 
tually put the rope around your neck ? 

A. I don't know as there ought to be anything done with him. 

Q. Can you read and write? 

A. No, sir. 

Q. Were you in the army? 

A. No, sir. 

Q. Was your brother in the army? 

A. Yes, sir. 

Q. (To Wm. Shearer). What was the parole you took ? 

A. I don't recollect now. 

Q. You have forgotten it already. 

A. Yes, sir ; I was glad to get out of it. 

Q. You promised not to take up arms or resist the laws of the United 
States ? 

A. Yes, sir, 

Q. You forgot your parole? 

A. Yes, sir ; that is so ; but a man can be scared to forget a good many 
things sometimes. 

Q,. (To James B. Shearer.) How many raids have you been on ? 

A. I have' not been on any but those two that ray brother spoke of, 
(William B. Shearer.) There was no oath nor constitution read to us, at 
all. This oath was just verbal that night we was swore in — never heard 
the constitution read — never seed it. 

Q. It didu't make much difference to you what was in the constitution, 
did it ? 

A. Well, I guess if I had knowed it, it would liave made some differ- 
ence. 



, 767 

Q,. The purpose of it was all iii the oath, wasn't it ? 

A. I didn't hear it. 

Judge Bond. The judgment of the Court, in each of your cases, is, 
that you be fined one hundred doilars, and be imprisoned for eighteen 
months. 

SAMUEL G. BROWN. 

Mr. Corbin. Will the Court pass sentence in the case of Samuel G, 
Brown ? 

Mr. Wilson. In his case, if the Court please, I desire to submit some 
affidavits which I have not had time to prepare. If it meets with the 
pleasure of the Court, Ave would prefer to have time to prepare them. 

Judge Bond. He r^ay make his statement. 

Samuel G. Brown arose. 

Q. (by Judge Bond.) What have you to say in mitigation of your sen- 
tence ? 

A. I should have liked to have got some affidavits to show my posi- 
tion, and why I met the Klan on that occasion. That is the only con- 
nection that ever I have liad with the Ivu Klux organization, attending 
one meeting of the Klan. I should have liked to have an opportunity 
of getting up affidavits to show why I met the Klan on that occasion. 

Judge Bond. If you propose to make to the Court a candid statement 
of all your connection w^ith this Klan, and all the other people in your com- 
munity who had connection with it, ,we have no objection to your having 
until to-morrow to do it ; and we want to know, not only your connection 
with it, but of every other person in your position in life in York County, 
wdio belonged to it ; and if you propose to do it, we will allow you time. 
But if you only mean to make a statement of your innocence — 

Prisoner. I can only state what I do know. 

Judge Bond. You may have until to-morrov/ to do it. 



Columbia, December 29, 1871. 
Mr. Brown. I have submitted some affidavits to the Court, and I wish 
to say, in reference to the constitution and the b)'^-laws that have been 
before the Court, that they came into my possession in 1868 or 1869. In 
a conversation I had with Mr. Albertus Hope, he told me that he had 
them ; and, on my expressing a wish to see them, he gave them to me. 
Whether this jwper that has been read before the Court is the same or 
not, I do not pretend to say whether it is or not. I- never read it, and 



768 

never knew the contents of the paper till I heard it read here. I put the 
paper away .and thought no n)ore of it, and my impression was that I had 
destroyed it. 

Judge Bond. Who is the chief in your County ? 

A. I do not know of my own knowledge. I have heard that the chief 
was Major Avery. 

Judge Bond. Who is chief of the State? 

A. I don't think I ever heard. 

Judge Bond. 1 have your affidavit. It appears, from the evidence 
given on the stand by several witnesses, that you were not only a mem- 
ber of this conspiracy, but that you took a prominent part in it. You 
are a man advanced in years, and those who were young and ignorant 
had a right lo look to you for direction and advice. Either at the time 
t':iese raids were going on or previously, I understand, you occupied some 
judicial position in your County. The State had armed you with a part of 
its power, but, so far from exercising your power and ability in the direc- 
tion of peace, laAV and order, you brought your influence — 

Mr. Brown (interrupting.) Allow me to say, sir, I have not held the 
position of Magistrate since, I think, '67 or '68. I have never been a 
Trial Justice. 

Judge Bond (continuing). The condition of those who were the victims 
of this conspiracy was hopeless. A man who had been appointed to pro- 
tect the innocent and the helpless, was untrue to his trust in giving them 
no protection. You state in your affidavit that, on one occasion, you 
prevented a raid en some one whom the Klan thought should be I'aided 
on. The Court will give you the benetit of this one instauce of a return 
to manhood ; that human heart would indeed be hard which could hear 
of bloodshed and violence, and take no part in the endeavor to sup- 
press it. 

The judgment of the Court, in your case, is, that j'ou be fined $1,000, 
and imprisoned for five years. 

[Mr. Brown was about to make some further explanation, whcTi Judge 
Bond said :] 

You evidently doTi't propose to tell all you know, and I don't, there- 
fore, propose to hear further. 

HENRY C. AVARl^ICK. 

The only raids I was ever on was that on Jim Williams and another; 
I live in York County, and work on a firm ; I am twenty-two years old; 
I joined the Ku Klux Klau last spring; it was the Pilot's Klan. When 
I went on the Jim Willinms raiil, I started from Robert Kiggans' with 
him and Bob Shearer; I did not see the iiaiiging; when the party dis- 



769 

mounted and the horses were hitched up, I stayed with the liorses ; I did 
not see any whipping at all ; I could not tell how many there were in tlie 
party ; some of thera had disguises ; I had on only a false liice ; I do not 
know any of the superior officers of the Klan. 

Judge Bond. The judgment of the Court, in your case is, that you be 
fined $100, and be imprisoned eighteen mouths. 

MILUS CARROLL., 

I have very little to say ; I acknowledge being on that Jim Williams 
raid; I never was svrorn in till that — 12 o'clock that day; I was told to 
meet the Klan at Briar Patch*; I did not know till I got there what wa,s 
their purpose ; I understood, after getting there, that they were going to 
McConnellsville after some guns ; I did not see Jim Williams hung ; I 
was with the horses; I suppose there were thirty to thirtj^-iive people on 
that raid ; the horses were hitched up, but I could not tell how many 
stayed with them ; I did not see or hear of any being whipped that night, 
and I don't know who were the men who hung Jim Williams ; some of 
the men were disguised ; I had a piece of cloth over my tace ; the Klan 
I belonged to was said to be Chambers Brown's Klan. 

Judge Bond. The judgment of the Court, in your case is, that you be 
fined $100, and be imprisoned eighteen months. 

ELI ROSS STEWART. 

I was on one raid ; I joined the Klan called Brown's Klan, between 
the middle and the latter part of last February ; Chambers Brown told 
me to meet at the Briar Patch the night of the Jim Williams raid ; 
there were about thirty to thirty-five on the raid, I suppose, and I under- 
stood their object to be to go down to McConnellsville for some guns ; I 
did not go to Jim Willianos' house ; I stayed with the horses after the 
others dismounted ; I don't know the names of any that went to the 
house, and I don't know the Chief of the Klan. 

Judge Bond pronounced sentence — eighteen months' imprisonment 
and a fine of $100. 

JOSIAH MARTIN". 

I was on one raid ; Mr. Avery swore me into the Klan ; I was upon 
the Jim Williams raid, but that was the only one I was ever on ; Napo- 
leon Miller told me I would have to go on that raid ; I don't know what 
authority he had for telling me I would have to go; he told me to meet 
them at the Briar Patch ; when the party got off their horses I did not 
go with them to Jim Williams' house ; I staid with the horses. 
49 



770 

Judge Bond. The seiiteuce of the Court, in your case, will be a fine of 
$100, and eighteen mouths' imprisonment. 

WILLIAM JOLLY, 

I live in Spartanburg, and I am about eighteen years old ; I belong to 
the Horse Creek Klau ; I joined last spring ; there were about fifteen or 
twenty members in the Klau ; we met in tl)e old field ; I have only been 
on one raid ; that was on Mary Beman ; my brother, Louis Jolly, was 
'with me; Jonah Vassey was the Chief of our Klau ; he is :n Spartanburg 
-now, I reckon ; Zebe Connell was one of our committee men, and so was 
old Mr. Tait ; I joined the Klau because I was afraid they would whip 
me if I didn't; my neighbors told me that I had to go in it, or be whip- 
ped into it; I was initiated into the Klau by George Scruggs; he told me 
I bad to join ; Louis Jolly, Tom Friers and Membrey Humphreys were 
the only ones on that raid, that I remember. 

ALFRED BLACKWELL. 

I live in Spartanburg, and L am nearly twenty-five years old ; I joined 
the Horse Creek Klan last March ; the Chief was Jonah Vassey ; there 
were twenty or thirty in the Klan, I reckon ; I was only on one raid ; 
that was on old Reuben Phillips ; we brushed him a little ; there were 
seven of us ; we brushed him for beating another man's steer to death, 
and throwing it into the branch ; 'twas Sam Surratt who said he did it ; 
Phillips was an old black man; we struck him three licks apiece; I don't 
know whose Klan it was went on this raid, but Shufler Black well was in 
it; I can't write or read, and have no " laming ;" I went into the Klan 
because I was scared into it, and I lay out three weeks for fear before I 
went into it ; I did not go to any Justice, or any one else, to tell them I was 
threatened, because I was afraid that if I went against them in any way, 
I would get a whipping for it ; I thought they would be sure to find 
it out. 

Q. Were any of the Justices Ku Klux ? 

A. I reckon they was. 

Six months' imprisonment. 

WILLIAM F. RAMSEY. 

I live in Spartanl)urg, and am about twenty-five years old ; I belong 
to the Hoise Creek Klan ; the Chief of the Klan was Jonah Vassey ; I 
reckon there was about thirty in it; I attended three of the meetings of 
the Klan, but there was nothing much done at them ; some of the com- 
mittee would consult, and tell us what was to be done ; there never was 



771 

any order issued "for a raid out while I belonged to it ; Jed. Edwards, Mr. 
Carroll, Mr. Tait, Sam Scruggs and Mr. Peck belonged to the committee ; 
I was on the Reuben Phillips raid ; we took him and his wife out and 
gave them three licks apiece ; she is about thirty years old, I guess, and 
he is about the same; 'twas about nine or ten o'clock at night ; I don't 
know what wo whipped them for ; Sam Surratt said that Phillips had 
killed a t^teer and threw it in the diich, and would not pay for it ; they 
told me if I did not go on the raid, when I was ordered, that they would go 
right for me, and that I would get so many lashes, and would have to 
pay a fine of five dollars ; I had been laying out three weeks before I 
joined the Klan, and ray uncle told me I had to join or leave the country ; 
the reason why I did not go to some ofticer of the law and tell him was 
because I was afraid to open my month about it ; I was but a poor, igno- 
rant man, and did not know better, and would be very glad now to call 
it back, if I could ; 'twas said that Bank Lyles was Chief of the Klan ; he 
has left the country, I understand ; why did not I leave the country ? be- 
cause [ was not able to go ; I just came and gave myself up the first 
chance I got ; W. S. Black well, iVlfred Blackvvell, Bam Surratt, John 
Moore and Kell Moore, seven of us in all, were on the raid; I felt 
ashamed after I had been on this raid, and said, if God would forgive 
me, I would never go on another, and I never did, though I was warned 
to go on some three or four more; I know most of those who joined the 
Klan did it f(;r self protection ; I suppose we did not unite and resist them 
because we did not have sense enough; but I know a good many didn't 
join voluntarily ; it seems to me that men who had good learning and 
knowledge ouglit to have teached us better. 

Q. Can you read or write? 

A. Nary a one ; I was raised in Spartanburg county. 

Three months' imprisonment. 

THOMAS J. PRICE. 

I live seventeen miles the other side of Spartanburg; I am twenty- 
nine years old ; (ailbert Surratt swore me into the Klan ; I have been on 
two raids ; R. P. Scruggs was Chief of the Klan ; our first raid was on 
Mary Beman, and the other was on Charley Fernandez and Jack Surratt; 
there were three of his family wliipped that night — his wife, son and 
daughter ; we touk them out and gave them a light whipping with hick- 
ories ; on the first raid there was a negro woman whipped, about one 
hundred and fifty yards from her house, but that was a light whipping, 

Q. VV^hat do you mean by that ? 

A. I suppose the had about twenty-five or thirty lashes with hickories; 
we pu-Ued her out of bed; at the raid on Charley Fernandez, we whipped 



772 

the two girls of his family — they were grown girls ; I joined the Khiu 
because I thought I was obliged to ; I was told I would get into a hobble 
if I didn't, and perhaps get a whipping if I didn't join them ; th^ told 
me that I had to obey orders, or I'd get into trouble ; they told me that 
it would not be safe ff)r me out of the order; they said I wouid be 
whipped or used roughly in some way or other. 

Judge Bond. I think there ought to be another proclamation of eman- 
cipation. 

Price continued. Robert Scruggs ordered me to go on the raid ; Bank 
Lyles, they told me, was Chief of the Klan ; I can't say that I thought 
of saving myself by going and whipping negroes and children, but I 
thought I was bound to join the Klau, and obey orders; and the reason 
why I didn't tell some of the authorities then was that I was afraid to 
do it. 

Q. Why didn't you tell the preachers there about these things ? 

A. I did not know but they might belong to the order. 

Six months' imprisonment. 

TAYLOR VASSEY. 

1 belong to the Horse Creek Klan ; I joined about the last of March ; 
I attended some three or four of the meetings, but there was nothing 
particular done while I was there ; some of them went oft' and talked by 
themselves, but I didn't know what it was about. I have only been on 
tv,"o raids ; there was nothing done to Hindo, but they whipped James 
Gaffney; and there was another feliow w-hipped that night — Matt 
Scruggs, a colored boy; we gave James Gaffney about three licks 
'apiece; he was whipped for stealing; they talked to him right smart, 
but I don't know that, they said anything to him about politics ; I joined 
the Ku Klux because I was afraid they would whip me if I didn't : I 
am not able to read or write, and am about twenty years old. 

Three months' imprisonment. 

KING EI>WARDS. 

I was twenty-one years old last April ; I joined the Horse Creek Klan 
last March ; I joined it through ignorance, I reckon ; I can't read or 
write much ; Alfred Harris initiated me ; I was on six or seven raids, I 
guess ; we first went on Dick Roberts ; Alfred Harris, Jervcy Gidney, 
Thomas Tait, Christenburg Tait, and Jonas Vassey were on the raid; 
Dick Roberts was a white man ; he had been stealing things from an- 
other man, and we talked to him ; the next raid was on John Harris ; lie 
was a black man, and we whipped him ; it was 9 or 10 o'clock at night, I 
reckon ; we pulled liim out of bed and whipped him a little with hick- 



i to 

ories; some of them said they gave him about sixty licks altogether; v/e 
whipped another black boy whose name was Mage Cash, and we whipped 
another named Humphries ; he was whi[)ped for whipping his young mas- 
ter ; we didn't talk to him about poliiics ; we next went on Martha 
Jolly, but we didn't do anything with her ; we next hunted for Jack 
Bark, but we didn't find him; Alfred Harris led the first raid, and Jonas 
Vassey led the other ; we made a raid on John Karris, and Billy Seruggs 
led us that night. 

Six months' imprisonment. 

CIIRISTENBERRY TAIT. 

I belong to the Horse Creek Klan; I am going on for eighteen years 
old, I gue^^s ; I cannot read or write ; I joined the Klan last January ; I 
joined it because they shouldn't raid on me ; they told me I had better 
join for fear of being killed ; I have been on three or four raids ; the first 
was on Richard Roberts; we raided on him because there had been talk 
about his selling whit-ky on Sabbath day ; he lived near the church, and 
had a barroom, and we ordered him to stop selling whisky on meeting 
day ; then we went to old Ride's ; he was a boy that wouldn't mind his 
mother, and we told him he had better mind her, and some of them struck 
him about ten licks with a peach tree switch ; we went into another black 
man's house, but we didn't do anything to him ; I do not know but that I 
have heard that Banks Lyle v/as Chief of the Klan; there were some re- 
spectable peojde in our neighborhood 1 there is Mr. Watkins and Mr. 
Collins, William McKinney and Miller McKinney ; they are respecta- 
ble men, and well off ; I joined the organization because they told me-I 
would not be safe if I did not ; William McKinney was taken out just be- 
fore this thing was broken up, and he would have been v\'hippedii he had 
not joined. 

Three months' imprisonment. 

JESSE TAIT. 

I joined the Horse Creek Klan last January ; I live in Spartanburg, 
near the North Carolina line; I never was on a raid in my life ; I joined 
the Ku Klux because I thought it would not be safe for me not to; it 
was Thomas Tait that told me it v/ould not be safe for me if I did not 
join the order ; I am an unlearned man, but I never thought about it 
being violation of law, or anything of the kind, to join it; Fi-ed Ed- 
wards, Mr. Catterby, David Collins and William Scruggs are the princi- 
pal men in our neighborhood. There were very few men there who kept 
out of the order ; they all said they would go into it for self defense, for 
they got up a report that the majority in the United States belonged to 



774 

it, and they said that every man that did not go into it would he forced 
into it ; I can't read or write to make much of it ; I can just manage to 
write my uame ; we have lawyers and preachers up there, but I don't 
knov: that they talked about this thing; people generally go to church 
up there ; there wasn't much whipping in our neighborhood, for there 
are very few negroes there ; I heard of a raid oncB at Rutherford, where 
they took the editor out, and I heard that Mr. Scruggs was in that; the 
order came from the Chief; since I have been down here I have 
heard him called the Great Cyclock; I have learned more about it down 
here than I ever knew before in ail my life ; when they were going on 
that raid, only those that had horses were ordered to go ; we are very 
poor up in that neighborhood, and only few of them had horses ; I never 
straddled a horse in my life on any such business, and never had a dis- 
guise on or anything of tlie kind ; King Edwards, Alfred Harris, Tay- 
lor Vassey, were members of the Horse Creek Klan ; I live by fiirming 
rented laud, and I got news here the other day tJiat the gentleman who 
owns the land was going to dispossess me, and turn my wife out of doors, 
although she is hardly able to sit up, because I surrendered myself and 
got myself taken up without being put under arrest. 

Judge Bond. Take this man's recognizance in five hundred dollars, 
that he may answer at a future sitting of the Court. 

FREDERICK HARRIS. 

I live in Spai-tanburg County, and belong to the Horse Creek Klau ; 
Jonas Vassey is Cliief ; I joined on the 28th of last March ; Dyke Har- 
ris initiated me ; I joined it for protection and to keep from being whip- 
ped ; the Ku Klux were whipping all around, and it was a great deal 
talked about among the people, and the only reason I had for joining 
them was through fear ; I have been on two raids, and five were whipped 
in all ; I can't say that I helped whip five people to keep njyself from 
being whipped ; I know I was ordered to do it ; we whii)p('d a colored 
man named Humphreys ; we pulled him out of bed and talked to him — 
but not about politics ; we gave him about twenty licks ; there were, I 
believe, ten of us; the next was a colored man named John Harris ; we 
found him in bed, pulled him out and whipped him ; the next was Mage 
Harris ; the next Matt Scruggs, and the next James Gafl^ney ; they were 
colored men ; I cannot read or write, and I am going on twenty years 
old. 

Q. Did you not know this was all wrong? 

A. No, sir ; I didn't know nothing about it. 

Q. Would you riot have thought it wrong if James GafFney had drag- 
ged you out of bed and whipped you ? 



775 

A. Well, I suppose I would have thought hard of it. 

Q. Don't you suppose he thought the same ? 

A. I didn't know whether it was wrong or not ; I was ordered to do it 
by the committee; Jed Edwards was one, and Steb Scruggs was another ; 
Scruggs owns a farm ; David Collins is a respectable man up there ; he 
didn't advise us against it; there was Billy McKinney, I don't know 
whether he was a Ku Kkix or not; I suppose the reason why I did not say 
I would not join the Ku Klux was because I hadn't sense enough. 

Six months' imprisonment. 

M. T. PHILLIPS. 

[The articulation of this defendant was so imperfect that it was neces- 
sary to use Wm. Robbins, a brother Ku Klux, as interpreter.] 

I never could talk so that anybody would understand me; I am going 
on twenty-five years old ; I joined the Du Bond Klan ; I should not have 
joined it if I had not been forced into it ; they whipped me before I joined 
the Klan. [Interpreter, that is so.] My brother-in-law said I must join 
it; it would not be saie for me if I didn't; I was initiated by Franklin 
Ray ; I cannot read or write ; almost everybody belonged to it. 

WILLIAM ROBBINS. 

The reason why I joined the Ku Khix order was that there was more 
of ray side — the Democrats — than of Republicans. I didn't belong to 
the Ku Klux order, but they sent me wonl that they believed I wiis after 
something, and so I was. I had said that I thought the thing ought to be 
put down, but all seemed afraid to take hold of it. The best men and the 
highest men belonged to the order, and they advised me to join for my 
protection. 

I can't say that they would have forced me into it if I had resisted; 
but it would have been a pretty bad thing, for, when they come about 
you they don't give you much time to do anything. I know, when they 
first came into ray field to get me to join, I threatened to fire into them. 
Next day, they sent a man to talk to me, and he told me there were two 
chances for me ; one was to join the order ; the other was to be abused by 
them. 

I don't tliink there were many in that part of the country that did 
not belong to it. I live about tv/o miles from the North Carolina line. I 
never was on but one raid in my life. 

Q. What likelihood is thei'e that the witnesses who have testified in 
these Ku Klux cases will be threatened' and persecuted when they return 
to Spartanburg? 

A. I would say that I would hate to be one and risk it, because I heard 



776 

leading men there say it wouIg be their day next ; I heard them say that 
■\vhen witnesses were called from our neighborhood to go to North Caro- 
lina. 

Q,. Who did you hear say that? 

A. Gilbert Surratt and Preston Goforth ; they are two leading and re- 
spectable men ; I heard them say it when there was a public meeting 
there and they were in the crowd, and it was in the latter part of the 
summer, about the time they took some of them up to Raleigh to try 
them ; this was at a public meeting, at Grassy Pond, and the speaker ad- 
vised them to stop this Ku Kluxing; he was opposed to it, he said; I 
cannot say if Gilbert Surratt is to be ibuud at home; I have been here 
eleven w'eeks, and have only had one letter from home in that time. 

GIBEON CANTEK. 

Said he lived in Spartanburg ; belonged to the Horse Creek Klan, which 
had about twenty members. He was sixty-six years old ; was a farmer, 
and had a wife, but no other family. Alfred Harris was Chief of his 
Klan. Jesse Tate, Chrusenbery Tate, Davie Collins, Billy Scruggs, 
Judge Edwards, King Edwards and Shuibrt Bhickwell were members of 
his Klan. Frank Rea initiated him. 

M. T. PHILIPS. 

Said that he belonged to the Doe Pond Klan, of which Franklin Rea was 
Chief; he joined some tinae before Cliristmas, in 1870; the Klan had 
about twenty-five or thirty members ; he was present at four meetings ; 
the Klan had been on two raids that he knew of; he was on a raid on a 
colored man named Andy Fernandez ; they struck him a few lashes 
apiece with switches ; Fernandez worked in the iron works ; never had 
done me any harm ; he wasn't asliamed for having whipped Fernandez ; 
was sent by the Committee of the Klan to do it, and of course was com- 
pelled to do it ; he joined the Klan under two Magistrates in North Car- 
olina, Cleveland County, and asked if it was a violation of the law to 
belong to the Klan ; and they said it was not. They were Harvey Alli- 
son and Latigley Samson ; he was a member of the Church ; never con- 
sulted his pastor about theKu Klux ; his Klan whipped Ben. Phillips, col- 
ored, his wife and daughter, very severely ; his daughter was 15 years 
old ; nearly all the white people of Spartanburg County belonged to the 
Klans; if they didn't go into it willingly, they were forced into it. If 
punishment will put down this thing I am willing to be punished my 
part. 

Judgment suspended. 



. 777 

D. LEWIS JOLLY. 

Said that he belouged to the Limestone Klan ; Banks Lyle was Chief of 
the County ; he has run away ; was on a raid to take a wliite man out of 
jail in Spatauburg, who was sentenced to be hung for killing a negro ; 
also on a raid when Mary Bean was whipped ; took her out of bed and 
whipped her a little ; whipped her for breaking the peace between a 
white man and wife; didn't whip the white man ; the white man's wife 
got the Klan to whip her ; he was a member of the Klan, and was one 
of these big wealthy men. 

W. S. BLACKWELL. 

Said that he was sworn in, but the Klan wouldn't receive him ; he had 
tried to recognize the horse tracks of the Klan, and had been sentenced 
to death by the Grand Klan. 

Six months' imprisonment. 

AARON EZELL. 

I joined the Ku Klux Klan because they threatened me, and said 
they would whip me if I did not go into it ; I have been on only two 
raids ; there were three colored boys that we whipped ; I was on the 
raid on Mr. Justice, at Rutherford ; I joined the organization in March ; 
I can read and write but a little ; I am nearly forty years old. 

Judge Bond. The sentence of the Court is, that you be fined ten 
dollars and imprisoned one year. 

MONROE SCRUGGS. 

Why did I join the Klan ? Well, I suppose, sir, it was for a want of 
sense; I have never been on but one raid; that was the one where 
Mr. Harris was whipped ; I am going on twenty-one years old, but I 
can't neither read nor write ; I work out for my living, hoeing ; I did 
not know anything about the Ku Klux until I went on that raid, 
and I didn't want to go on another. 

Judge Bryan, in passing seiitence upon this prisoner, said: 
The Court, in parsing sentence upon you, looks upon your youth ; 
you have not the responsibility of settled manhood, and it is but natu- 
ral that you should have taken direction from those wtio were older 
than yourself, and you may have been impressed by the public senti- 
ment around you. The Court seeks to find palliation for the enormities, 
the unmanly enormities, that have been committed. Striking men where 
men could not strike back to protect themselves, and where they had 



778 

no redress or hope of redress ; striking with masks on, and, therefore, 
striking without any responsibility! Whether these enormities have 
been committed on men, still more on women, they were wholly un- 
manly, and let me say utterly un-Sonth Carolinian. Nothing could be 
so little characteristic of the State ; nothing so calculated to bring dis- 
grace upon the 8tate; nothing so calculated to overturn and besmear 
its ancient, high and bright escutcheon. These stories afflict all men, 
but they peculiarly afflict him who now addresses you ; I would be 
glad to regard them as exceptions; I must esteem them as in great 
measure exceptional, and I say to you, young as you are, you have 
brought reproach upon your State, and you have done wrong to its 
character. Tlie greatest possible wrong that any son of hers could do, 
would be to besmear and tarnish her ancient renown and reputation. 
In passing sentence upon you, we cannot but recollect your youth ; we 
cannot but remember the disordered condition of the times; we can- 
not but recollect that the moral sense of our people, so recently en- 
gaged in war, and especially from the disorderly condition of things, 
may be, to some extent, blighted ; we, therefore, feel justified in greatly 
modifying the sentence which has just been passed upon the prisoner 
who has arrived at full manhood. The sentence of the Court in your 
case is, that you be fined ten dollars and confined in prison for six 
months. 

ALEXANDER BRIDGES. 

I am thirty-seven years old, and have a family of seven children ; 1 
jiave been on two raids ; I believe there were two or three people 
whipped; I did not want to go (m the raid; I didn't mean to go, but I 
happened to meet with them, and so I went ; but I didn't do any of the 
whipping myself. 

Q. Was not every man requir*^d to do his part? 

A. Nobody asked me, and I did not do anything. Why didn't I 
inform the authorities? I was afraid to. I thought they might kill me 
if I divulged anything. Why didn't 1 get away? I could not take my 
family with me; I had to stay. 

Judge Bond. The sentence of the Court is that you be fined ten dol- 
lars and be confined one year. 

JOHN DURNETT. 

I belong to the Ku Klux organization. I was only on one raid. I 
was twenty-one years old last April. I can't read or write, but I can 
just write my name. Do wc take any newspaper in our part of the 
country ? I guess not. 

Judge Bryan, Are not the people very poor there? 



799 

A. Yes, sir ; very. 

Q. Have you luid an opportunity of an education? 

A, No, sir ; never had no cliauce ; I haven't got neither father nor 
mother ; the Khm only whipped two negroes while I was in it. 

Judge Bond. The sentence of the Court is that you he imprisoned six 
months. 

W. p. BURNETT. 

I am twenty-seven years old ; I can't read or write ; there are some 
schools in our part, but I never had no chance to go ; I have only been 
on one raid; I joined the Ku Klux because they said I would be 
whipped if I didn't ; I was obliged to go in to save my own self; the two 
niggers we whipped we gave about thirty apiece [meaning lashes;] 
pretty nigh everybody in our neighborhood belonged to the organiza- 
tion—I mean the laboring people and both classes. 

Q. Did the principal people go (m raids? 

A. No, sir ; but they pushed the poor people into it, and made them 
go; I was induced to join, because they came to ray house and told me 
if I didn't I'd have to pay five dollars and take fifty lashes; it was Henry 
Cautrell that told me this; I didn't want to go into it, and shouldn't 
have gone, but all the neighborhood were obliged to go. 

Judge Bond. The sentence of the Court is that you be imprisoned six 
mbnths. 

STEPHEN B. SPLAWN. 

I suppose I belong to the order, though I was never sworn into it * 
there were some people of our place down at Limestone, and they brought 
np word about the organization, and they brought up the oath, or what 
they called the platform ; I told them I did not see anything wrong in 
it; it seemed to me like a vigilance committee, and they were getting 
them up in all the diflferent neighborhoods, and I said I thought it would 
be very well for us to have one to protect our neighborhood, for there 
were some depredations committed around ; I had nothing to do with 
getting up the organization ; there were some eight or ten joined before 
I knew anything about it; one day they met, and, after a good deal of 
cavilment, they settled that I should be their leader ; we kept hearing of 
these oifenses that had been committed in York and Union ; I attended 
a meeting of the Klan at Limestone, and I there found out that the 
Grand Klan had given orders for whipping men that didn't comply with 
their notions ; when I returned home, I had a meeting, and I told them 
what I had found out, and we just disbanded, and said we would have 
no more to do with it ; the object of the Grand Klan was to interfere 



780 

with voting ; I don't know that there was anything said about voting, 
but that was the way I took it; I nevei- was on-any raid, but I just met 
cue ; I did not think it was right to do what they were doing, and any- 
thing that was contrary to law I was opposed to. 

Q. Did you communicate this experience of yours to the authorities 
when you found out it was an unlawful organization ? 

A. I spoke of it in every community I went into. 

Q. Did you tell any Justice of the Peace of it ? 

A. I did. 

Q. What did he say? 

A. Well, he was in it, too. Bank Lyles is the name of the man that 
presided at Limestone ; Sim Moore and Alfred Latham were two more 
of the men that were there; illfied Latham was one of the owners of 
the Cherokee Iron Works. 

[This prisoner seemed to manifest great unwillingness in confessing 
what he knt;\v, on which Mr. Corbin called Robert Cash, who testified as 
follows] : 

Judge Bond. Do you know this man ? 

A. Yes, sir. 

Q. Are you a member of the Ku Klux ? 

A. Yes, sir. 

Q. Are you a member of his Klan? 

A. Yes, sir. 

Q,. Did his Klan ever go on any raiding ? 

A. Yes, sir ; on one. 

Q. Did he go with you ? 

A. Yes, sir. 

Judge Bond (to Splawn). The judgment of the Court in your case is 
that you be fined fifty dollars and imprisoned two years. 

MAKION GAKDINEK. 

Q. What is your business? 

A. I belong to the order. 

Q. What do you do for a living ? 

A. I labor. 

Q. W^hat uniform is that you have on? 

[The prisoner wore an old United Stales iniimtry coat.] 

A. I bought it. 

Q,. Were you a soldier? 

A. No, sir. I have been on one raicl, but nothing was done ; they 
didn't find the man they went for. I can't either read or write. 

[Mr. Corbin, having been appealed to by the Court, confirmed the 
general statement of the prisoner.] 



781 

Judge Bond. The sentence of the Coui't is that you be imprisoned 
three months. 

CIIESTETIFIELD SCRUGGS. 

I live in Spartanburg County, and I suppose I am twenty-five years 
old. It wasn't I, but my cousin, Bob Scruggs, that went on the raid into 
North Carolina on Mr. Justice. I have been on two raids, and whipped 
two colored boys. I joined the organization last April, The Chief of 
our Klan is Joseph Vassey. 

Judge Bond. The sentence of the Court is l^hat you be imprisoned 
six raonths. 

HENRY SURATT. 

I joined the Ku Klux because they threatened to whip me if I didn't ; 
I shouldn't have joined hadn't it been to have saved myself; T am aoout 
twenty years old ; they threatened to whip everybody that didn't join the 
organization ; I was never on nary a raid ; I advised them not to go ; I 
wasn't goin' to join them, but they said I would have to protect myself; 
they said I couldn't stay there if I didn't join them; that was in March ; 
I have already been in jail about two months. 

Mr. Corbiu confirmed the statements of the prisoner. 

Judge Bond. What are you going to do to protect yourself wdien you 
get home ? 

A. I don't know, sir ; they have threatened us enough, I know. 

Judge Bond. They will be likely to be quiet there in a month ; and as 
you have been confined for two months, the sentence of the Court is, that 
you be imprisoned for one month . 

The prisoner. 1 am quite willing to take that to have quiet there. 

ANDREW CUDD. 

I am twenty-two years old ; I can't read or write ; I have been on two 
raids ; on the raid that I went on, w^e whipped Jimmie Gaffner and Matt 
Scruggs ; the chief of the Klan was Jonas Vassey ; I shouldn't have 
joined the Klan, but th(>y threatened to wdiip me, and they abused my 
folks right smart, and threatened to kill the girl that lived with me ; they 
said if I didn't vote the Democratic ticket they'd give me five hundred 
lashes; one of my friends advised me to join it, for he said they would be 
sure to whip me if I didn't; I might have left, but I was so fixed that 
I could not get away; I had a family, and so had to stay with them. 

Q. Are there churches in your neighborhood? 

A. Yes, sir. 



782 I 

- 1 

Q. Did all the members of the church belong to the organization ? 

A. Pretty much they did. I 

Judge Bryan. Did you join in whipping anybody yourself? ] 

A. No, sir, indeed I didn't. 

I have a wife and three children ; pretty much all our Klan are i 

here. • , 

Judge Bond. The sentence of the Court in your case i:^, that you be im- ! 

prisoned three months. , 

MARTIN HAMMETT. j 

I belonged to the Dnpend Klan, and am about twenty-three years old ; ' ' 

I have been on three raids, I believe ; the first time we whipped three, ; 

the next time one, and the next, two, I believe; the Chief of our Klan j 

was Frank Ray ; I had to join the Klan or take a whipping ; they called ! 

on m^ before I joined it and threatened to beat me, and took me out and \ 
laid me down, and one of them struck me one lick ; they said they would * 

come back in two weeks ; they said I needn't try to get away, for they i 

would follow me; I cannot read or write; I am married, I 

Judge Bond. The sentence of the Court is, that yon be imprisoned for 
six mouths. 

LEWIS HENDERSON. 

I live in Spartanburg District ; I have only been on one raid, but never 

whipped a negro in my life ; I didn't know anything about the raid until ; 

they were going on it. i 

[This prisoner was so ignorant that he seemed incapable of understand- . i 

ing the simplest English, or of expressing himself with any coherence.] j 

Judge Bond. The sentence of the Court is, that you be imprisoned i 

three months. I 

WM. SELF. 

The way I come to join the order was that a couple of friends kept at i 

me, wanting me to join, and I kept wizzening them to know something ' 

about it, and at last he just up and told me just as it wasj and said I would ^ 
have to join it now or else they'd whip me or kill me, or I'd have to leave ; 

on them conditions I joined the order ; I was only in the order a short ! 

time, and then I quit it, and wouldn't have anything at all more to do 1 

with it; I guess I've been on three raids; the first was on Ben Phillips ; j 

Ave struck them three licks apiece. ! 

Q. Were they men or women ? \ 

A. Well, they was a mixtry ; there was two women and one man ; the J 

next was on Mr. Roberts, and we went on him ; he had a grocery, and \ 



783 

had whisky to sell ; he was selling whisky on the clays of the church ; 
the church was less than half a mile from his house, and there was always 
a drinking crowd on Saturdays and Sundays, when we went to church ; 
we went to tell him to stop. 

Q. Were all your Klan members of the Temperance Society ? 
A. I don't understand. 
Question repeated ; no answer. 
Q. Do you know what a Temperance Society is? 
A. No, sir. 

Q. Were they all opposed to drinking whisky? 
A. Well, I was myself. 

There was nothing said to the niggers we whipped about politics; we 
next went du a man named Johnnie Green ; we didn't do anything to 
him. 

Judge Bryan. Didn't you feel very much ashamed of yourself for act- 
ing in this way ? 

A. Well, sir, I know I done v/rong. 

Q. (by Judge Bond). Didn't you know you were doing wrong at the 
time? 

A. Well, sir, I was ordered to do it by the Klan ; of course, I didn't 
feel like it was right. 

Q. Were you in disguise? 
A. We had head disguises on. 
Q. Can you read and write ? 
A. I can't read write, nary one. 
Q. Did you go to church ? 
A. Yes, sir. 

Q. Did the preacher ever preach against these Avhippings? 
A. No, sir ; I never heard him say anything about it being wrong. 
Q. Didn't they talk about these things in church ? 
A. No, sir; I never heard anything about what happened. 
Judge Bond. They talked about what happened eighteen hundred 
years ago. 

I get my living by farming ; I wasn't arrested, but I came here with- 
out any warrant at all. 

Judge Bryan, in passing sentence, said : " We trust you realize how 
unmanly your conduct has been ; you seem to show signs of contrition 
for your conduct, and, as you say you were forced into the matter, the 
judgment of the Court is thar, you be imprisoned three months, including 
the imprisonment you have already sufl'erod. 



784 

CHARLES TATT. 

I belonged to the Horse Creek Klau ; I've been on five or six raidf?, as 
well as I can recollect; I was ou the raid that went on the McKinney 
negroes; they didn't whip them, but they took thiir shot guns; about a 
week after they were ordered to go back, and then they whipped Reuben 
]\[cKinney, Wash McKinney and Henry Scruggs ; then I was on the 
John Harris raid, and the Rutherford raid ; Jonah Vassey commanded 
that raid ; then I was on the Sam Gaffney raid ; that was commanded by 
a man named Russell ; the reason I joined the order was that they told 
rae it was a good thing to be in it, and that if I didn't join I would 
he very likely to be driven from tiie country ; I can't either read or 
write. 

[Mr. Corbin, on being appealed to b}* the Court, said he knew nothing 
favorable of the prisoner.] 

Judge Bond. The sentence of the Court is that you be imprisoned for 
eighteen months. 

JUNIUS B. TYNDALL. 

I have been on three raids ; I was pressed into the order, for they said 
we had to keep the negroes down ; they said they had to keep them from 
overrunning the white people; then I heard the negroes had drawn guns; 
it was right smart after that that I went into it ; the first raid I went ou 
was for a nigger up at Joe Richards' ; the nigger never done me no harm, 
as I knows on. 

Q. Did they whip the negro? 
^ A. Tliey made the woman whip the man, and the man whip the wo- 
man ; tlie next raid I was on was when they whipped Matt Lockhart ; 
the niggers were going to have a pic-nic ou a widow woman's place, and 
going to have a frolic and dancing, and they didn't want them to 
have it, and so they were whipped. I am nineteen years old, but I can't 
read or write. 

Judge Bond. Tlie judgment of the Court is, that you be imprisoned 
one year. 

MELVIN C. BLACKWOOD. 

I belong to the order, but have only been on one raid ; that was on 
Ben. Phillips; I am nineteen years old, but I can't read or write ; I get 
my living by hiring from place to place about; Philip Rubens was the 
first man that told me I must join. Frank Ray was the Chief; he swore 
me in ; the reason I didn't know better was that I had nobody to tell me, 



785 

ami the reason I didn't tell anybody I was in it, was that any one that 
told anything about it wouldn't have been safe. 

Judge Bryan, passing sentence, said : 

Looking to your extreme youth, and judging by your countenance, 
and seeing that you have had little connection with these outrages, the 
sentence of the Court is, that you imprisoned for two months. 

JOHN L. MOORE. 

I have been on some four or five raids, I reckon ; I was only three 
months in the order; one of the raids was on Dick Roberts, and another 
was on the McKinney niggers; one was on Reuben Phillips, and the 
other was on Alfred Blackwell. 

Q, How many people were beaten on the raid? 

A. I can hardly tell ; there was some four or five on the night of the 
raid on the McKinney niggers ; the next time was on Reuben Phillips ; 
there was three whipped that night ; the next raid was on Alfred Black- 
well ; he had it done himself; his wife would not stay at home, and he 
wanted her to stay at home and cook, while he was making a crop, and 
he spoke to some of the boys and they raided on them ; but they only 
gave her one or two licks, with a pine bough ; I can't read or write a 
bit ; the reason I joined the order, was, I suppose, because I hadn't sense 
to do any better; nobody that know'dany better didn't tell me. 

Judge Bond. The sentence of the Court is, that you be imprisoned 
eighteen months. 

JOHN CANTRELL. 

I am nineteen years old some time when this April comes; I can read 
printing a bit, but I can't write; my father belongs to the Ku Klux ; 
I've been on two raids ; one was the Blackwell raid ; I didn't see any 
whipped on the Blackwell raid, but there was one whipped on the other 
raid. Why did I go into this thing? I was just persuaded into it by 
a man by the name of Gilbert; he is now moved off', and I don't know 
where he is. 

Judge Bond. The sentence of the Court is, that you be imprisoned for 
three montlii?. 

JONAS VASSEY. 

I belonged to Dan Harris' Klan, and they throwed him over, and I 
Avas Chief; the Khiu went on three raids after I was elected Chief; 1 am 
twenty-five years old. 

Judge Bond. Do you know anything about this man, Mr. Corbin ? 

Mr. Corbin. There is one thing to be said, perhaps, in his favor, that 
50 



786 

instead of running away, like the otlier Chiefs,, he came in and said he 
proposed to take the consequences, and he has given much information 
to the authorities. 

Judge Bond. The judgment of the Court, in your case, i.s, that you be 
imprisoned for one year, and be fined ten dollars. 

.TAMES WALL. 

Judge Bryan. What have you done? 

A. I have been on two raids. 

Judge Bond. Who is your Chief? 

A. Aaron Duncan. 

Judge Bond. When yoa saw what this order was, wliy didn't you tell 
some Ju,-;tice of the Peace ? 

A. They said if I did they would kill me; that was the oath. 

Judge Bond. Do you ever read the newspapers ? 

A. Yes, sir ; sometimes. 

Judge Bond. Have you ever been out of ihe J^tate of South Cai'o- 
lina? 

A. Yes, sir; I have been to Virginia in the time of the war. 

Judge Bond. You ought to have had better sense than this ; you cau 
read and write, and read the newspapers, and have been out of the 
State ; that is one advantage you have had ; who is going to put in your 
crops for you this Spring ? 

A. I have not got anybody. 

Judge Bond. Had these people you Vvdiipped ever done you any 
harm ? 

A. No, sir; the Chief just went on and whipped him because he 
was telling a lie about the guns ; asked hira if he had an}' gun? and he 
said he hadn't. 

Judge Bond. What was that your business whether he bad a gun or 
Dot? hadn't you a gun? 

A. Yes, sir ; I had guns of my own at home. 

Judge Bond. Now, you see the condition of the thing is just this : If 
we punish you, as you ought to be punished, there is nobody to culti- 
vate your place ; if we do not, you will go to Ku Kluxing again. 

A. No, sir ; won't go any more. 

Judge Bond. How are you going to help it? The Chief will come 
around and tell you to go, and you will go. 

A. No, sir ; I wouldn't go. 

Judge Bond. Then he will whip you. 

A. Then I will have to take it — ^but 1 think Ku Klusing is done 
broke up in my County now. 



787 

Judge Bond. You didn't help to break it up though. I am going to 
trust you this time, in order to allow you to put in your crop next 
Spring; I am going to imprison you for three months; you ought to go 
for about eighteen months ; I am doing what you didn't do ; I arii hav- 
ing some consideration for your wife and children ; but you had no 
consideration for other people's wives and children ; but I have the hap- 
piness of being from a different State. 

Judge Brj^an. The Court has been very much puzzled to reconcile 
justice with humanity. It is an extreme exercise of mercy to you, that 
they announce this judgment. 

JOHN C. WALL. 

I have been on three raids ; can read and write ; learned in school in 
Spartanburg. 

Judge Bond. The judgaent of the Court is, that you be imprisoned 
three mouths. 

LEWIS JOLLY. 

Mr. Corbin. Do you know anything about the Owen murder ? 

A. No, sir. 

Mr. Corbin. Haven't you told people you were there? 

A. Yes, sir. 

Mr. Corbin. Why did you tell it? 

A. It was done through a joke ? 

Mr. Corbin. Owen was a Republican, if the Court please,, in Uuian 
County, who was rudely murdered, a year ago this fall, by the Ku 
Klux.' 

Judge Bond. I think this person should be held until the question can 
Ite tried. It is a very queer thing to joke about. 

OTHER CASES. 

The following persons were sentenced, as follows : 

David C. McClure, three months' imprisonment. 

Calvin Cook, three months' imprisonment. 

Albert P. Clement, three mouths' imprisonment and ten dollars fine. 

Dillard N. Cautrel, three months' imprisonment. 

Zibien Cantrel, one year's imprisonment. 

Wiiiiam Robbins, six inonths' imprisonment. 



788 

Columbia, January 5, 1872. 

REMARKS OF MR. CORBIN. 

Previous to the passing of sentence, the prisoners being present, Mr. 
Corbin addressed the Court as toliows : 

3fay it please your Honors : 

These prisoners throw themselves upon the mercy of the Court, and I 
respectfully ask that judgment may be passed upon them. They have 
come in, voluntarily, to plead guilty. There are, in many of the cases, 
extenuating circumstances that ought, in my judgment, to appeal to the 
clemency of the Court. Some of the prisoners are young, many of them 
are very ignorant, and nearly all claim that they have been driven into 
this orgiinizatiou by the force of public opinion, by threats, and to save 
themselves from the visitations of the Ku Klux ; in other words, they 
went into this organization to protect theaiselves from its violence. 

In almost all the cases to which I ask the attention of the Court, the 
parties have gone upon raids and have assisted in inflicting punishment, 
more or less severe, upon negroes. 

If it were possible to excuse some of them entirely from the just pun- 
ishment for these offenses, I, for one, would be glad to do it, for I think 
the responsibility of these outrages rests upon the men of the County 
who were the leaders and Chiefs of Klans — in many cases, men of prop- 
erty, who have led and controlled these others. These are the ones that 
ought to be punished. But your Honors know that most of this class 
who, from their social influence and position, aided in the perpetration 
of these crimes, have fled the country. They were able to fly, but many 
of these parties were not, and when it was known amongst them that 
these charges were made against them, and that proof existed, and was 
in the hands of the Government, they pleaded guilty, and desired to 
throw themselves upon the mercy of the Court. 

I do not see how it is consistent with the protection of the citizens of 
that County to allow these parties to escape without some punishment. 
I do not see how the Government can permit the plea that the force of 
public opinion in that neighborhood forced them into an organization 
like this, and that the fear of visitations from the Ku Klux should lead 
them to enter an organization and join in atrocities such as they con- 
fess to, and yet be hold guiltless. The individual responsibility of the 
citizen before the law seems to be inconsistent with such a plea. 

In making these remarks, it is simply to express the desire that a wise 
and merciful discrimination should be made in favor of those who have 
been led, seduced or forced into an organization guilty of such inliun)au 
atrocities. 



789 

REMARKS OF JUDGE BOND. 

Judge Bond then addressed the prisoners, as follows: 

You have pleaded guilty to an indictment which charges you with 
conspiring with other men throughout this State to intimidate a certain 
class of voters, by means of threats, beating, and even killing, because 
that class of citizens were opposed to the conspirators in political 
opinion. 

We acknowledge great 2:)erplexity in determining what punishment 
shall be meted out to you. We have no words strong enough to signify 
our horror at the means employed to carry out the purpose of the Kians. 
Our difficulty is personal to you. 

You have, as it appears from your statements to the Court, been 
brought up in the most deploriible ignorance. At the age of manhood, 
but one or two of you can either read or write, and you have lived in a 
community where the evidence seems to establish the fact that the men 
of prnminence and education — those who, by their superiority in these 
respects, establish and control public opinion — were, for the most part, 
participants in the conspiracy, or so much in terror of it, that you 
could obtain from them neither protection nor advice, had you sought 
it. 

There is abundant proof of the nature and character of the conspiracy. 
Evidence of niglitly raids by bands of di^-guised men, who broke into 
the houses of negroes and dragged them from their beds — jDarents and 
children — and, tieing them to trees, unmercifully beat them, is exhibited 
in every case. Murder and rape are not unfrequent accompauimeuts, 
the story of which is too indecent for public mention. The persons upon 
whom these atrocities are committed are almost always colored people. 
Whatever excuse is given for a raid, its conclusion was almost always 
accompanied by a rebuke for the former exercise of the suffrage and 
a warning as to the future exercise of the right to vote. 

But what is quite as appalling to the Court as the horrible nature of 
these offenses is the utter absence, on your part, and on the i)art of 
others who have made confession here, of any sense or feeling, that you 
have d<nie anything very wrong in your confessed participation in outra- 
ges wliich are unexampled outside of the Indian territory. 

Some of your comrades recite the circumstuncts of a brutal, unpro- 
voked murder, done by themselves, witli as little apparent abhorrence as 
they would relate the incidents of a picnic, and you yoursvlves speak of 
the number of blows with a hickory, which you intiicted at midnight 
upon the lacerated, bleeding back of a defenseless woman, without so 
much as a blush or sigh of regret. None of you seem to have the slight- 
est idea of, or respect lor, the sacredness of the human j^erson. Some of 



790 

you yourselves luive been beaten by the Klans without feeling a smart, 
but the physical pain. There appears to be no wounding of the ^4)irit; 
no such sense of injuiy to yourself, as a vian, as would be felt by the 
humble.-it of your fellow-citizens in any other part of the United States 
with which I ana acquainted. 

There, th»j citizen upon whom such outrages were perpetrated, stung to 
madness by the insult to his manhood, would be swift to follow the wrong- 
doer to the end of the vrorld to make him atone for it. You make ex- 
cu'^e for this in your statement to the Court, that you are very ignorant, 
that the Klaus v.-ould have beaten you, and even killed you, had you re- 
fused to join them in their crimes. Some of you now particularly before 
me have actually suffered for your refusal, before you really united in 
membership with them. The Court, in an endeavor to recognize some 
features of humanity in you, has considered these facts which you plead 
as excuses. You have grown up in a country where slavery ex- 
isted fur a long time, and where the whipping post was a standing insti- 
tution. 

To see blacks flagellated was no unusual occurrence. The scene, often 
viewed, with its novelty, lost its revolting efiect. And, when it came to 
be understood that the human pes son was not so sacred in the colored 
man as to secure inunuuity from outrage, it did not take it hmg to lose 
its sacred character in yourselves, and in all other men who, like the col- 
ored man, was obliged to labor. It njust be from this cause that your 
utter indifference to wrongs which, among freemen, would stir a fever in 
the blood of age, arises. 

And then you tell us that you differ from many other portions of the 
country in this, that it has always been obligatory upon you, and the 
class to which you belong, to look to persons of wealth and education for 
command, and that \ou, in your ignorance, had to follow such persons 
implicitly. 

It will appear strange to your fellow-countrymen, who read your story 
and that of your confederates, however willing they may be to believe you, 
that so large a portion of the young white men of your County can be in 
such a state of abject slavery to the men of property above them, as to be 
willing to commit murder at their command. 

In no case has there been any resistance to these midnight raiders, ex- 
cept on the part of the colored people. 

You say some of you " laid out " in the woods night after night, and 
have hidden yourself in thickets to escape these marauders. None of 
you, however, have had the numlinesstf) defend your firesides from the as- 
saults of these lawless men. There has not been, on your part, so far as 
the evidence shows, an assault and battery committed in defense of fam- 
ily and home, and all that freemen hold dear. 



791 

Adniittin^;- all you liave said to the Court to be true, while the story of 
your conditiou and of your piu'ticipation in these outrages through fear 
is painful enough, the facts do not excuse you. They may palliate, in 
some degree, your ofi'ense, but they cannot justify you. The punishment 
the Court awards you is partly inflicted, that you may learn that no 
amount of threats or fear of punishment will justify a man in unpro- 
voked violence to another, unless the danger threatened to the wrong- 
doer be imminent or actually present at the time of his wrong doing, and 
even then the danger must be of present great bodily harm, and of death 
itself, before some of the criminal conduct confessed would be justified. 

It does not excuse you for participating in this conspiracy, and raiding 
upon inoffensive colored people, dragging them from their beds, beating 
some and hanging others, that you had notice, if you did not join, the 
Klans would visit you. 

You are bound to run the risk or seek mcms of protection, rather than 
do violence to your neighbor. The law and your fellow-citizens look to 
you to make this threat of violence difficult of execution, by a manly re- 
sistance or an enf )rcement of the law. You had no right, when you 
could escape, to make the price of your security the violation of your 
neighbor's. 

You and your confederates must make up your minds either to resist 
the Ku Klnx conspiracy or the laws of the United States. They cannot 
both exist together ; and it only needs a little manliness and courage, on 
the part of you ignorant dupes of designing men, to give supremacy to 
the law. Be assured it will not be taken as an excuse in your case, or in 
any other, to-hear it said : " I slew this man because the chief ordered it, 
and I was afraid," and "'bru:;hcd' and raped these others because I 
dreaded to be whipped if I did not." 



Part IX. 



HABEAS CORBUS. 



After the departure of Judge Bond, Judge Bryan, District Judge, 
sitting alone, applications were made for writs of habeas corpus in three 
classes of cases, with a view, on the part of counsel for the applicants, to 
thus bring before the Supreme Court, for final determination, the validity 
of the Acts of Congress upon which thfse prosecutions are based. 

AY. W. Fickling, Esq., of counsel for the applicants, first presented 
the petition of John Lyttle. The petition was read, and, in substance, 
recited that John Lyttle was retained in the custody of L. E. Johnson, 
United States Marshal, by virtue of a true bill found against him by the 
grand jury, " that he, with divers others, on the 11th of April, 1871, did 
unlawfully violate the first Section of tlie Act of Congress of May 31, 
1870, in interfering with the right of vuting," &e.; also, for "hindering 
and obstructing Dick Wilson and others from voting at an election to be 
held November, 1872." 

Also, that said Lyttle, vvith others, did, "on the 11th (^ May, 1871, 
conspire with others to threaten and intimidate Dick Wilson and others, 
on the third Wednesday of October, 1870, contiary to Act of Congress 
made and provided." 

Also, that said Lyttle "did, with others, at pre-ent unknown, on the 
21st of April, 1871, unlawfully conspire to injure Dick Wilson, on 
account of giving his lawful support to A. S. Wallace, as a member of 
Congress, contrary to the Act of April 20, 1871." 

The petition further showed that "ho is restrained of his liberty in 
violation of the Constitution of the United States, and, therefore, prays 
that he be brought before their Honors, that the cause of commitment 
being known and seen, such further proceedings may be had thereon as 
are agreeable to law and justice." 

Mr. Fickling. I suppose your Honor will grant a writ to liring the 
prisoner up into Court, so that the question may be on his being re- 
manded to i)risou or discharged. 

Mr. Corbiu. Not exactly so, if it appears from the record that he is 
properly held. 



793 

Mr. Fickling. You must briug him up, in order tliat that may aiipcar. 
The case must be before the Court before the Court can deti^imiue 
whether he shall be discharged or remanded to prison. The gmuiing of 
the writ is, of course, a matter of right. The question will be upon his 
being remanded to prison or discharged; but the case must be here before 
it can l)e disposed of. 

Mr. Corbin. That is not the practice. The granting of a writ of /n<6ras 
eo?;pifs is not always a matter of right. If, on application for a writ, it 
appears that the party is not entitled to be discharged U[)on that writ, 
then the Court refuses the Avrit ; but if it does not appear upon the process 
how the defendant is held, so that the Court is called to see that he is 
held on a proper process, then he is brought up and the process upon 
which he is held is examined into by the Court. 

Bat we respectfully submit that the prisoner has stated himself, out of 
Court, by showing proper and sufficient ground for his detention, to wit, 
that he is duly indicted by the grand jury and held upon a bench warrant 
issued on that indictment. If that is a sufficient cause of detention, then 
the Court will not grant the writ. That was decided in ex parteMovgax), 
reported in 4th Wallace. 

The Court. The writ cannot be granted unless sufficient cause be sliown. 
It is not for the Court to ask for the cause of commitment after intlictuient. 
The only question can be whether the indictment is sufficient cause for 
detention. That is the point to be argued. 

Mr. Fickling. One of the three cases to be presented is that in which 
there is no indictment. If your Honor consents, I will take up ihe case of 
J. Jefferson Greer first, as there is no indictment in his case. 

Mr. Corbin. There is an indictment against him. 

Mr. Fickling. There w-as none when I read the petition on Monday,* 
but I understand from the District Attorney that an indict'uent has since 
been found against him. I do not know what the indictment is, but the 
petition states that he is in prison under the authority of the United States, 
and asks to know the cause for which he is committed. 

Mr. Corbin. The indictment was found on the 8th. f 

Mr. Fickling. Perhaps I may be defeated in that case, but at the time 
I presented the petition I knew nothing of the indictment. 

Mr. Corbin. Do you want that prisoner brought up? 

Mr. Fickling. Yes, sir ; I should like him to be brought into Court. 

The Court. If it is admitted that he has been indicted, then he is de- 
tained upon that authority, and the question comes up whether that is 



* Ti'pse proceerlinjrs took plao.' on Wednesrlav. January 10th, tS7'. 
t A True I'.iU was found a^jaiast J, Jefl'cson Greer, ou "Monday nior:iing, about llie 
time his petition was being presented In Court. 



794 

sufficient and legul authority. Upou that quc'^tion I am prepared to hear 
ariiument. 

Mi\ Fickiing. The argument I have to make upou that question if, in 
brief, this — 

Mr. Corbin, (interrupting). Of course, we don't want to make any 
argument upon this queistion. 

The Court. I vrish to avoid it, if possible. 

Mr. Corbin. If my friend on the other side wants Greer bi-ought up, 
and if ic is required to exhibit the bench warrant upou which he is held 
and bring the prisoner here, we will do so, and argue it then. But the 
point I nnide against the first application, that it does not show itself, does 
not apply to this, and the Court would, perhaps, in that case, issue the 
writ. 

The Cairt. Unquestionably. 

Mr. Fickiing. I am aware that the writ of habeas coi'jms does not issu?, 
of course. If the petition shows what is the cause of detention, the 
Court may or may not, in its wisdom, order, or refuse to grant the order 
for, tlie writ to be issued, and refuse the prayer of the petitioner. But, 
I take it, that it woidd be a very clear case ia whicli the Court would 
refuse to grant, the writ. No harm can result from granting the writ, as 
the prisoner is here. If ho were a hundred miles avvay, and the grantitig 
of the writ would involve expense, delay and trouble of bringing the 
prisoner a great distance, and your Honor did not think the case was 
m;tde which would justify you in gramiug the writ, or that you were not 
sufhciently informed by the petition, your TIont)r niight, in reason and 
practice, refuse the writ. But in a case wdiere no inconvenience would 
r -hult, and where your Honor's remanding the prisoner to jail will have 
the same effect as )'^our Honor's order to refuse to grant the writ, I w^ould 
])refer to have the writ granted, and have your Honor's order remand- 
ing the prisoner — that is, provided your Honor does not conclude the 
prisoner is entitled to his discharge. 

The purpose for which the wrh is asked is not, as your H>;nor is w» 11 
aware, to obtain bail for the prisoner; it is to ask for his discharge — not 
upon the ground that he, prima facia, is not properly confined ; not upon 
the ground that there is not a warrant against him, or an indictment 
against him; but on the ground that the law under which he is inflicted, 
and under which the warrant was issued against him, is unconstitutional. 
That is the question to be tried. That is the cause which your Honor is 
to hear. It is not the particular circumstance under which he has been 
arrested, or whether he has been arrested with or without warrant ; 
whether an indictment luis been found against him or not; nor whether 
judgment has been pronounced against him or not ; but whether this 
arrest, indictment, committal and judgment is in accordance with the law 



795 

of the laud and the Constitution of tlie United States ; and, to deter- 
mine this, we des'ire to take the ca«e. to the Supreme Court of the United 
States. The habeas corpus being the only mode known to the law by 
which a criminal matter can be taken to the Supreme Court without a 
division and certificate of the Judges of the Court, 

In order to cojifonn to the precise term of the decision of the Court, I 
desire your Honor, instead of making an order refusing the writ, to 
make an order remanding the prisoner to jail. 

I beg in this connection to refer your Honor to a paragraph from 8th 
Wallace, if! the c:ise of ex parte Yerger, before the Supreme Court: "We 
are, therefore, obliged to hold, that in all cases where a Circuit Court of 
the United States has, in the exercise of its original jurisdiction, caused 
a prisoner to be brought before it, and has, after incpiiry into tlie causes 
of detention, remanded him to the custody from which he has been 
taken, this Court, in the exercise of its appellate jurisdiction, may, by 
the writ of hahras corpus, aided by the writ of certiorari^ revhe the deci- 
sion of the Ciixuit Court, and, if it be found unwarranted by law, relieve 
the prisoner from the unlawful restraint to which he has been remanded." 

That was a case in whicii the writ was issued and tiie Court liad re- 
nianded the prisoner upon the hearing. It woidd make a new case if it 
went up on the order refusing the writ. I do not think there can be a 
doubt whether th( Supreme Court would entertain the question or not, 
for there would be your Honor's order, and, if your Honor had remanded 
the prisoner wi^en you ought to have discharged him, then your Honor 
ought to have granted the writ, and I think the result would be the same 
thing, and tliat we could as well carry the case up on the order of your 
Honor refufiug to giant the writ as upon an order remanding the pri- 
soner. 

To make sure that the case should go to the Supreme Court, whatever 
the result there may be, I want the constitutionality in regard to the 
right of exercising the suffrage to be decided in the Supreme Court, and 
this is the only mode which I, or those acting with me, have been able to 
devise to bring this matter before the Supreme Court without a division 
of the Judges, and I doubt not your Honor will aid us in thus l)ringing 
so important an issue before the highest tribunal in the land. 

If the Supreme Court shall, in its wisdom, decide the Act to be con- 
stitutional in all its parts and provisions with regard to the right of suf- 
frage, we shall submit to its decree with satisfaction. But, as long as the 
question remains open, and there are those who think the act uncon- 
stitutiimal, there will be a feeling of resistance to it. There will be 
those who think that a wrong may be done in carrying out this law ; 
and, as there is a tribunal wliich can finally decide the question, x 



796 

doiil)t not your Honor v/ill pursue that C(jursc which will most certainly 
carry it into eliect. 

I therefore ask your Honor to remand the prisoner, instead of makiug 
your order that the writ may not be issued. 

Mr. Corbin. An order is never granted, may it please your Honor, 
which will be perfectly futile. The Court never does a thing- for the 
simple sake of doing, and then undoing it. The Court never does any- 
thing unless it is apparent that something is to be accomplished by it. 

Now, my distinguished friend asks that this prisoner may be brought 
into Court, when, if he were here, the very paper Avhich the counsel has 
presented to the Court shows that the prisoner is not entitled to the 
writ; ami, if the prisoner were in Court, we should still say to the Court 
that no return was required to the writ, or to tlie petition, because, upon 
its face, it cannot be granted, as is shown by the ruling of the Supreme 
Court, cited in the case referred to in 4th Wallace. 

On the presentation of a petition the Court may consider, from the 
petition itself, whether, if the prisoner were brought before the Court, he 
would be discharged ; and, if the Court sees he would not be, then, of 
course, the order bringing him before the Court is not granted, for it 
sees from the beginning that such an order would be utterly futile. What, 
it may be asked, do yoti w-ant of the prisoner here, when it is seen, by 
looking at the petition itself, that you cannot discharge him? 

The Court. Is not the precise case presented ? 

Mr, Fickling. I cannot say till I know what the return is. We do not 
know the cause of detention, except from hearsay, that it is for the vio- 
lation of this Act of Congress. 

The Court. We will reserve our decision till we ascertain whether the 
case is made. If it is made in one case it is sufficient. 

Mr. Fickling. I shall have to be content with your Honor's ruling, 
but we shall take the case up, no matter Avhat your Hono]''s ruling 
may be. 

Mr. Corbin. The prisoner was first held upon the warrant of United 
States Commissioner Boozer ; then he was indicted, together with some 
forty others, for violating the first Section of the Act of May 31, 1870; 
secondly, he is held by the bench warrant of this Court, issued upon an 
indictnjent found against him. In connection with this indictment it is 
charged that he committed the crime of murder. 

Sir. Fickling. In regard to the constitutionality of the question, I un- 
derstood your Honors to determine, on the motion in arrest of judgment, 
that the Act of Congress, so far as it affjcted the right of suffrage, was 
jonstitutional. I, therefore, think it well for your Honor to suppose I 
have made my argument rather than occu})y time in saying that which I 
have no reason to suppose can modify your previous decision. 



797 

The Court. I will save you that trouble, because, so far as the euforce- 
raeut and protection of the right of suffrage is concerned, I have never 
entertained the shadow of a doubt of its constitutionality ; and I have 
acted upon that conviction for more than a year without the least hesita- 
tion; considering such legislation as based upon that which was essential 
to the very idea of Government, and as incident to government, itself. 

Tl)e Government of the United States, though limited, is nevertheless 
a government. It may have refrained from exercising this right, because 
it deemed the right of suffrage was sufficiently guarded and protected by 
the State Constitution ; but whf^n Congress became convinced that it was 
not suiiicieutly guarded, it was its duty, as it was its privilege, to enforce 
and jirotect thac right so as to secure it to every man that had the right, 
and to prevent any man that had not the right from exercising it. It was 
the duty of Congress to secure to every citizen, without distinction of 
color, the absolute exercise of that right, and to punish those who under- 
took to interfere with the exercise of that right. I regard that portion of 
the law, which has reference to persons of color, as doing nothing more 
than S'icuring to that class of citizens the right that belongs to them in 
common with all other citizens. In securing to the colored man the right 
of suffrage, it only puts him on a level, in this respect, with what had be- 
fore been done for other citizens. 

I, therefore, esteem this law vital to the Government, and essential 
to the protection of the citizen. An abandonment of this right, on the 
part of the Government, would be an abdication of Government ; it 
would be to surrender that which was essential to its own protec- 
tion and its own existence. I have, therefore, gone forward in the main- 
tenance of this law, without hesitation, feeling that its maintenance was, 
not only in consonance with my convictions as a Judge, but agreeable 
to the sentiment of patriotism as a citizen. 

I remand, therefore, these piisoners, on that ground. If it were 
brought to the attention of the Court to relieve them on bail, we would 
gladly interpose to shield citizens from any unnecessary hardshi}) of im- 
prisonment. 

Mr. Fickling. I ask that the same order be made in the cases of Rob- 
ert Hayes Mitchell, John Lyttle and J. Jefferson Green. 

The Court then made the following order, in the case of Robert Hayes 
Mitchell, and a similar one in each of the other cases : 

" United States of America, \ 
" District of S. C, 4th District, j 

" Stated Term of United States Circuit Court begun and holden at Co- 
lumbia, S. C, on the 4th Monday of November, A. D. 1871. 
" Hon. George S. Bryan, United States District Judge, presiding. 



798 

" Ex parte Roht. H. Mitchell. 

" A writ of habeas corpus having ' been granted in this case, and the 
prisoner, Robert Hayes Mitchell, produced in Court, and the cause of 
his detention having been fully enquired into, F. W. Fickling, Esq., 
having been heard on behalf of the prisoner, and D. T. Corbiu, United 
States District Attorney, on behalf of the United States, it is ordered and 
adjudged : 

"That said Robert H. Mitchell is lawfnl]}' detained, and that he be 
remanded to prison. 

"GEORGE S. BRYAN, 

" Presiding Judge." 



Appendix 



PROCEEDINGS AGAINST F. W. McMASfER, Esq., FOE CON- 
TEMPT. 



Columbia, January 3, 1872. 

CASE OF COLONEL F. V,'. M'mASTEK. 

Mr. Corbiu read the or(]er of the Court, that F. W. McMaster, attor- 
ney, show cause v/hy his name should not be struck from the roll uf at- 
torneys, for refusing to state to the Court where his client, E. T. Avery, 
was, and for whom bail had been taken, at the request of Mr. McMaster. 
Mr. McMaster was represented by Mr. Fickling and Mr. AVaties. 

Mr. Fickling read the answer of Mr. McMaster, which, in substance, 
said : 

In answer to the rule, the respondent replied that, on the occasion re- 
ferred to, the question propounded by the Court was, " Where is your 
client ?" To which the respondent replied that he hoped the Court would 
excuse him from answering the question. The respondent denies any in- 
tention of showing any disrespect to the Court, or of putting himself in 
contempt; but he clkims certain rights and privileges, as a mem her of 
the bar, which are as sacred as those of life and liberty, and which he 
felt bound to assert. He submits that there was no requirement, on 
his part, as an attorney, to answer the question propounded, and that his 
mere refusal was no contempt. He submits that it was not his duty to 
become an informer against his client, and, therefore, his refusal to an- 
swer was not in contempt of the Court. 

He submits, further, that he was in no wise the custodian of his clieu^ 
who was under recognizance of bail, and that he was not admitted to bail 
at his request, but only upon his application as an attorney, and that bail 
was allowed, as a matter of right, upon the terms prescribed by the 
Court. 



800 

ARGUMENT OP MR. PICKLING. 

Jlr. Fickling said : That in submitting the return of Mr. McMaster to 
the rule of the Court, he was conscious of representing a gentleman of 
tried honor, integi'ity and virtue ; (me who, by a life of purity, had se- 
cured the confidence, esteem and respect of all who knew him. Mr. Mc- 
Master was one to whom anything mean or low, corrupt or fraudulent, 
or infamous, was abhorrent. He was one who was incapable of doing 
anvthinf which, as a gentleman or man of liouor, or as a member of the 
bar, it would be improper for him, knowingly, to do under such circum- 
stances. He was startled at the magnitude of the charge preferred 
ao-ainst his client. It was not simply a rule to show cause why Mr. 
McMiister should not be attached f )r contempt, but why his name should 
not be stricken from the roll of the bar ; vvhy he should not be disgraced, 
degravled, and rendered infamous for all time, as far as it was in the power 
of the Court to render him. 

He would first present the question, was Mr. McMaster's conduct any 
contempt at all ? 

He would ask their Honoi's whether the Court regarded it as their 
prerogative to ask a member of the bar any question Avhich the Court 
miglit please to put, and to require thereto a categorical answer. 

Contempt was a recognized offense, but it had its limitations. The in- 
tention to be discourteous, rude and defiant to the Court, was contempt. 
Sir. McMaster had no such intention. His reply was in the most court- 
eous terms. It was not eveu a refusal to answer the Court, but a desire 
to be excused from answering. But had it been a positive refusal, not 
discourteous or in any way insulting, would it then Iiave been a con- 
tempt? 

Contempt was the doing, by an attorney, of that which he had no 
right to do in the fiice of the Court. There must be wrong involved. It 
was quite possible that a question might be asked by vhe Court which 
the attorney has not learnc(l to answer. 

Coniyn's Digest, B, 14, 15, defines contempt, and gives a catalogue of 
different things which an attorney ought not to do, and for the doing of 
v.hich an attorney might be punished ; but the refusal to answer a ques- 
tion was not among tliose oflenses that came within the rule. He dis- 
tinctly asserts that there must be some wrong intended or done; some- 
thing violative of his duty and obligations as an attorney; something 
corrupt, fraudulent, or some intentional rudeness or insult to the Court. 
None of which existed in the conduct of Mr. McMaster. 

Mr. Pickling here read from Bacon's Abridgement, Vol. 1, under Letter 
I, the grounds upon which an attorney could be charged with contempt, 
namely, acts showing a base, corrupt or fraudulent intent. 



$ 801 

Again : would not aflidavits be required to show that Mr. McMaster 
was in po^-sessiou of the knowledge which the Court desired him to di- 
vulge? Before an attorney could be stricken from the rolls there must 
be proof of an offense deserving that judgment. No man was bound to 
accuse himself, and no man could be punished before conviction. There 
was no crime in refusing to answer a question ; it was no violation of 
moral obligation; theie was no collusion or attempt to deceive or defraud 
the Court. 

Again, the Court would not proceed to punish for contempt when the 
party injured, the United States, had no other redress. The United 
Slates had a full and adequate remedy — the forfeiture of the recogni- 
zance. Dr. Avery was not a prisoner at the time he left. He had been 
a prisoner, but had been released, discharged, was at liberty to go where 
he pleased, suliject to the bond he gave. If he was not there he had to 
pay his bond. That w^as tiic only restraint under which he was held. 

Mr. McMaster was not bound to be an informer; he was in no wise 
the custodian of the person of Dr. Avery, and in no way responsible for 
his safe-keeping. He was not morally or professionally bound to de- 
clare where he was, even if he knew; indeed, it would have been a vio- 
lation of his professional confidence, if, knowing, he had confessed. 

Ml'. Fiekli;ig then (}uote<l from Bacon's Abridgement, Vol. 3, under 
letter A, and concluded by saying, that had Mr. McMaster attempted to 
betray the confidence of his client, he would have deserved the repri- 
mand of the Court. 

At the close of Mr. Fickliug's argument, Mr. Corbin said that he and 
I^Ir. Chamberlain had not had an opportunity to examine the question, 
but that they felt very confident that the authorities would bear them 
out in saying that the refusual to answer implicated Mr. McMaster 
in rb.e attempt t') escape, and in that regard it was unquestionably an in- 
t'jrforence with the due course of justice. He thought, if time could be 
granted until Tiiursday, they couhl furnish a most complete reply to the 
return. 



Columbia, January 4, 1872. 

ARGU:\rENT OF MR. CHAMBERLAIN. 

M-iij It Please the Court: 

In the matter of the rule against ^Ir. Mc^Iaster, I do not consider my- 
self as appearing hereau the capacity of an advocate, but rather in the 
51 



802 • 

disclmrge of a duty tliat is laid npon me by the Court, as well as in tlie 
discharge of my duty as a representative of the Governiuent; for this is 
a proceeding which affects the discharge and completion of a duty — 
namely, the prosecution of this case — which we have undertaken for the 
United States Government. 

I think every one who knows me will be assured that I could Ui^t press 
this matter with anything Y)f acrimony or personal ill-feeling toward the 
gentleman whom this matter more particularly touches, and for whom I 
liave none but the kindest personal feelings. 

The facts out of which this proceeding has arisen are not disputed. 
Upon observing the absence of Dr. Avery, the Court inquired of his 
attorney if he knew the whereabouts of his client, and his answer was a 
request to bo excused from answering. He was then asked if he had 
had any communication with his client in reference to his absence. 

Mr. Fielding. I think his Honor determined yesterday that he did not 
propound that question. 

Mr. Chamberlain. I did not know that there was any dispute about the 
correctness of the phonographer's report. 

Judge Bond. None whatever. Mr. McMaster was asked if ho kncAv 
the whei'eabouts of his client, and then he was asked if he had had any 
communication with him before going away. 

Mr. Chamberlain. The questions are precisely as taken down by the 
reporter. 

"The Court. Do you know where your client is, Mr. McMaster? 

"Mr. McMaster. I beg the Court will excuse me fiom answering that 
question. 

"The Court. Had you any knowledge from your client that he was 
going away?" 

Which question Mr. McMaster also declined to answer. 

It is now claimed that the mere declining to answer these questions 
cannot be construed into proof that Mr. McMaster was aware of the 
reason or purpose of his client in absenting himself In otlier words, 
and as distinctly stated by his counsel yesterday, the Court should be re- 
quired to prove an aliundi, to proceed on affidavit, or, by some other 
method of proof, to ascertain if Mr. McMaster had any complicity iu 
the escape of his client from trial. 

It seems to us that, in this matter, Mr. McMaster has exposed himself 
to the just and necessary inference, in declining to answer tliis question, 
that ho had knowledge of the whereabouts of his client, and that he had 
communication with him upon that subject before he left, for he says to 
the Court, in effect : I cannot answer those questions, because it will 
criminate mysTf. His declining to answer those questions, and explain, 
leaves us to the inevitable inference, as the case now stands, that he did 



803 

know, and that he did have communication with Dr. Avery with refer- 
ence to his escape. If this.be true, it seems to me that there is but one 
ground upon which Mr. McMaster can protect himself from the conse- 
quences of complicity in the escape of this prisoner. It seems to me 
that he cannot claim that this communication with his client, with refer- 
ence to this escape, was in the nature of a privileged communication 
made by his client to him while in the exercise of his professional duty 
to that client. Therefore, we meet the very grave question, the all-im- 
portant question, in this communication, whether such a communication 
as that is a privileged communication from a client to his professional 
adviser. 

Let us remember that an attorney is an officer of the Court. How- 
ever widely the popular mind may have strayed from the just conception 
of the duty of an attorney, he is always considered, in law, strictly as an 
officer of the Court, an officer of justice ; concerned, always, when he is 
in the discharge of his professional duties, with furthering the ends of 
justice. That may recall some of us, who are attorneys, from a very 
wide straying from this correct and just conception of our duties; but it 
is nevertheless true that we are all of us, as attorneys, as much officers- 
of justice as your Honors are, or as the marshals or other executive- 
officers of your Court are, and equally and always concerned in the pro- 
tection of law, and in the vindication and execution of justice. Any 
departure from that line of duty, on the part of an attorney, is a palpa- 
ble dereliction of duty. 

There are, in the discharge of tire duties of an attorney, certain com- 
munications from client to attorney, which he may not disclose, and which 
the Court will not allow him to disclose; and the question, to my mind, 
now seems to be, was the knowledge derived from communications with 
Dr. Avery to Mr. McMaster the subject of a privileged communication, 
which this Court may not require him to disclose? 

Now, may it please your Honors, if Mr. McMaster was set to defend 
Dr. Avery against the charge of conspiracy, before this Court, he was the 
profes-iional adviser with reference to this case, and, with reference to the 
indictment against his client, that he had conspired with others to vio- 
late the laws of the United States. Now, is there anything in that which 
looks to any complicity with this escape from that trial ? Is he defend- 
ing Dr. Avery, in any just sense of the term, when he connives, conspires 
or communicates with him in reference to his escape from the jurisdiction 
and authority of this Court? When I undertake to defend a client in 
this Court, against a charge brought against him, is it competent for me, 
as his attorney, as an officer set here to further the ends of justice, to com- 
municate with him in reference, not to his trial, but to his escape from 
trial? not that justice may be done upon him in the matter of receiving 



804 

a verdict of guilty, or not guilty, but that he may put himself beyond the 
reach of the Court and preveut justice, either la his belialf or iigainst him, 
from being attained ? 

It is true that the privilege of client to attorney is very broad, but it does 
not cover everything, and it does not conflict with that great duty which 
the attorney, from the nature of his office, under his oath, holds to a 
'Court of justice. 

A good statement, on this general rule, is found in first Greenleaf on 
Evidence, Section 240. 

[Mr. Chamberlain here read the paragraph on protection of eommuni. 
cation from client to attorney]. 

It v/ill be seen that this entirely covers any comrnunication which may 
have been made to Mr. McMastei- for his professional aid or advice upon 
the subject of Dr. Avery's rights and liabilities. But what was the case 
upon which Mr. McMaster had undertaken to give professional aid and 
advice? Was it a (|uestion whether it was prudent for Dr. Avery to 
stand his trial? No, it was upon his rights and liabilities to the law — 
not how he might escape from the reach of the law, and put himself be- 
vond the power of this Court — professional aid and advice upon the sub- 
ject of his rights and liabilities, how he shall be defended, what was ne- 
cessary to constitute a legal defense against this charge, what evidence is 
admissible and what shall be excludtd, and what consideration shall be 
addressed to the Court in his behalf; yet I understand the claim now to 
be made that all this embraces advice and communication with reference 
to his escape from the very forum where his atttorncy had been standing 
to defend him. But is that professional aid and advice? Is that advice 
upon the subject of the rights and liabilities of Dr. Avery in this Court 
and under this indictment? It clearly is not, but it is communication 
and advice with respect to his escape from the very position where Mr. 
McMaster was stationed and had undertaken to conduct his defense. It 
was an arrow's flight beyond professional range. It was a confession that 
the hour for professional advice was gone, and that, having discharged 
the utmosT, of his duty, and exhausted the utmost of his ingenuity, the law 
was pressing upon his client to his conviction. Then Mr. McMaster as- 
sumed to step beyond that line, and communicate and advise with his 
client with reference to his escape. 

The limitation upon the sacredness of communication from client to 
attorney is distinctly stated by the same authority — Greenleaf on Evi- 
dence, Section 244. 

[Mr. Chauiberlaiu here read the passage relating to privileged commu- 
nication.] 

There is no dovibt, vrhen this communication wa-j had with Dr. Avery, 
that the relation of attorney and client existed between those two gentle- 



805 

men; but the queslion is, had Dr. Avery's escape anything to do with 
the profpssioiial advice and assistance which Mr. McMaster was bound 
to give to his client. If, as I have shown you, he could not, in the ex- 
ercise of the just functions of his office of attorney, have communica- 
tiun, and be privileged in concealing it, then we have here precisely the 
explanation which is recognized by this authority of communications 
made while the relation of attorney and client subsists, but still having 
no relation to the execution and performance of professional duty. 

This, therefore, cmld not have been a privileged communication. It 
could not have been advice or assistance given by Mr. MjMaster to his 
client, because it was, upon the face of it, a palpable and direct attempt 
not to act as an officer of this Court; but to act in defiance of this Court* 
and for the express purpose of enabling his client not to stand his de " 
fan^e and meet his verdict, but to escape beyond the reach of justice. 

My friend, yesterday, in his argument in behalf of Mr. McMaster, al- 
luded to tlie fact that Dr. Avery had been admitted to bail by this 
Court, and he distinctly advanced the doctrine that the forfeiture of that 
bond was a complete remedy on the part of the United States; a com- 
plete equivalent for the presence of Dr. Avery, and that the United 
States had chosen to set down the value of Dr. Avery at S3,000, and 
that the United States would have its remedy, in the forfeiture of the 
$3,000, f )r the non-punishment of Dr. Avery for this offense. I think I 
never heard a more dangerons or a more unsupported doctrine advanced 
in any Court. The idea that the United States, having fixed the bail of 
Dr. Avery at ^3,000, now receives its equivalent; for my friend dis- 
tinctly said that there was the alternative, either stand your trial, or pay 
$3,000, and Dr. Avery had taken the alternative of paying 83,000, and, 
therefore, the United States and Dr. Avery were even. Did the United 
States, or did y(mr Honors, when you granted that bail and fixed the 
amount at $3,000, conceive that that was the equivalent for the offense 
committed? 1 need not argue that point. The purpose of that bail was 
simply to euable Dr. Avery, instead of remaining within the prison walls 
to await his trial, to be at large, and to visit his family and to enjoy his 
freedom, under that restraint, until the hour when the Government would 
call him to his trial. It was simply to secure his presence at his trial, 
and had no reference whatever, and brought about no such relation be- 
tween the Government and Dr. Avery, that if he chose to pay $3,000, 
the Government had no further claims, against him ; and if this claim 
was supported, then what right has the Marshal with hisoflicers and de- 
tectives to be to-day upon the track of Dr. Avery? We have got his 
$3,000, but if my friend's argument is correct. Dr. Avery owes ns noth- 
ing more ; he has taken his alternative, forfeited his $3,000, and gone. 
And then his attorney had the right to advise him to it. No, if it please 



806 

your Honors, he was bound to be here, upon the penalty of the forfeit- 
ure of three thousand dollars, to meet his trial. That was the signifi- 
cance of his bond ; and it had nothing whatever to do, and does not 
form the slightest justification for any advice or aid from his attorney 
in forfeiting that bond, to take himself beyond the reach of the Court. 

The general power of a Court to punish the offense and misbehavior of 
attorneys is stated in Bacon's Abridgement, Vol. 1, page 506, under the 
title of Attorney, capital letter H. 

[Mr. Chamberlain read the passage from Bacon, which was to the eftect 
that attorneys could be struck from the roll for ill-practice, attended 
with fraud and corruption, committed against the obvious rules of justice 
and common honesty.] 

It has not, I think, been claimed in this matter that it was by acci. 
dent or neglect that Mr. McMaster's communication with his client arose ; 
although it has been claimed that the Government has another remedy 
against Dr. Avery, to wit : the forfeiture of his bond. 

[Mr. Chamberlain here quoted from Cranch's Circuit Court Reports, 
Vol. 4, page 503, showing that an attorney was not permitted to evade 
the fair operation of the law, or impede the course of justice.] 

The just rights of Dr. Avery were in the keeping and protection of 
Mr. McMastei', but nothing more. His rights here were to a fair trial, 
to a full examination of all his evidence, and the opportunity to present 
every circumstance and every particle of evidence that might be pre- 
sented in his behalf; but it extended no further. He was bound to pro- 
tect the just rights of his client, but he was not bound — he was for- 
bidden, by honorable, professional conduct — to attempt to evade the 
operations of the law, or to defeat the administration of justice. 

Has the operation of the law been evaded ? Has the administration of 
justice been defeated? If Mr. McMaster, in his communication with his 
client, had knowledge of this purpose on the part of his client, then he 
was not in the discharge of his professional duty. It was in violation of 
professional duty, and in contempt and scorn of this Court, when he lis- 
tened to that communication, and gave that advice, and came into tliis 
Court to decline to answer those questions. 

[Mr. Chamberlain here read from the following authorities : Cranch's 
Circuit Court Reports, Volume 2, page 379 ; also Wallace's Reports, V^ol- 
ume 7, i)agc 3()4 ; showing that attorneys could be proceeded against fi)r 
disobedience of rules and for ill-practice against the obvious rules of jus- 
tice and common honesty.] 

These authorities go distinctly to the point, that it is entirely beyond 
the discharge of professional duty to attempt, directly or indirectly, to 
defeat the administration of justice, or to evade the operation of the law, 
and that there is no duly which the Court will more jealously and invari- 



807 

ably discliJirge than that of aftixing proper puni.shnicut fur such aii of- 
iense, on the part of its oflicers. 

Can there be a doubt that, in tliis instance, the administration of jus 
tice has been defeated, and operations of the law evaded? 

ARGU.MENT OF IMR. CORBIN. 

May it Ple.ase ymir Honors: 

I feel that I need to add but a word to what has been so well saitl by 
the Attorney General. It is a delicate and a somewhat trying duty to 
animadvert upon the conduct of a brother attorney. It is an uupiejisant 
duty, because, if the Court please, we are all oihecn's of the Court, and 
we are all called brothers at the bar. Oar relations are usually and 
necessarily friendly. Our business eoraniunicatious are constant, and all 
know how much more agreeable it is to be upon friendly terras v>'ith 
those with whom we have constant business relations. But we sustain 
another relation, namely, that of fidelity to the Court. We have a duty 
to perform to the Court, as well as to each other, and it is a duty which 
we cannot disregard. The Court relies upon us, and it relies upon our 
honesty, our hosior and our fidelity. And we owe another duty to the 
community in which Ave live, and that is to sustain the high character 
of the profession to which we belong. When one of our number ste|)S 
aside from the high duty which he, as counsellor, owes to the Court, then 
it becomes a duty, though a painful one, to speak to him as we ouglit, in 
vindication of ourselves, the profession and the Court. 

What is the necessary and inevitable inference from the reply of Mr. 
McMaster to the question of the Court? "Do you know where your 
client is, Mr. McMaster ?" "Had you any knowledge that your client 
was going away ?" His reply is : "I decline to answer." The necessary 
inference from that — and it is one from which neither we nor the Court 
can escape — and it is the inference which the community will draw, and 
the world readily understand, and that is, he did know where his client 
was ; had knowledge from his client that he was going away. Ttie 
inference is, that he declined answering these questions in order to con- 
ceal the flight of his client, and thus aid in his escape. His client was 
on trial for a felony; much time of the Court had been consumed in the 
trial ; witnesses for and against him had been examined ; and when it 
became apparent that he might probably be convicted, then he, with the 
knowledge, consent and assistance of his attorney — because concealment 
is assistance — he seeks safety in flight; and by the aid and assistance of 
his attorney, defeats the due course of justice. This is the true statement 
of the case, and we must not seek to cover Mr. McMaster with a mantle 
of charity; for the common sense of mankind will draw the inferences 
I have presented, and will adhere to them to the end of time. 



808 

i 

Kow, I aek, is the conduct of Mr. McMaster cousistent -with liis duty 
as an attorney and counsellor of this Court? The relation of attorney 
and counsellor to the Court is one of confidence. The Court relies on 
ln-< integrity and honor ; he is a friend to the Court. If any fraud is 
being practised on the Court, he must disclose it; any attempt to cheat 
or mislead the Court, or defeat the due process of the Court, the attor. 
nay or counsellor should inform the Court of it; because his relation t 
tlie Court is one of confidence and trust ; his oath implies it ; lie is 
sworn to faithfully discharge his duties as an officer of the Court. 
Lord Mansfield says that he sustains these relations to the Court, and 
that his conduct should be above suspicion. But, I ask, how does this 
conduct of this gentleman appear when measured by this rule? The 
gentlemen on the other side argue, that, being counsellor for Dr. Avery, 
he had a right to conceal everything, including his flight, or anything 
his client might choose to do. But the rule that Mr. Russel lays down, 
in his work on Crime, Vol. 2, page 908, is, that the privilege of an 
attorney does not attach to everything that the client may say to his 
attorney. The test is, whether it is necessary for carrying on the pro- 
ceeding in Avhich the attorney is employed. If it was necessary for his 
defense, then Mr. McMaster would be excused ; but, if not necessary 
for the purpose of carrying on tlie proceeding in which the attorney 
was employed, tlien his communication was not privileged. 

Was it necessary, I ask, to the defense of his client, that he should 
refuse to tell where his client was, or refuse to disclose the fact of his 
flight? His flight was the defeat of the progress of the cause. His 
flight defeated the administration of justice, and robbed the law of its 
just penalty. Now, if Mr. McMaster was implicated in that, it seems 
to me that that is the end of the cause. The authority on this point 
cannot be refuted, and it was repeated in what my assistant, the At- 
torney General, stated, that unless the communication was necessary to 
his cause, and connected with his cause and tiie due conducting of the 
defense, it was not a privileged communication, and it cannot be said 
that there was any excuse in this case for refusing to re,oly. 

The very moment the demand was made by the Court, we witnessed 
the proper conduct of an attorney. What did Mr. Wilson say, when 
interrogated by the Court? Feeling that he might be implicated in the 
flight of the defendant, on being asked "Where is your client?" Mr. 
Wilson replied, "I understood, when we adjourned, that Dr. Avery 
had gone to see his family, and that ho would return to-day." " Do 
you expect him back?" asked the Court. " I have had no interview 
with him, but I expect him to return by the next train ; I know nothing, 
save from information I received from Mr. McMaster." Here, if the 
Court please, is proper conduct on the part of an attorney. Under 



809 

the circumstances, he feels that the flight of the defendant may be 
attributed to him, and he hastens to assure the Court that he knew 
nothing about it, but expected him here. He is ready and willing to 
disclose the honest relation of himself with his client, so far as the Court 
deemed such information necessary to the protection of the cause. Mr. 
Wilson, in his frank avowal to the Court and the counsel on our side, 
says, in effect, "I hope you will not suspect that I am implicated in the 
fiight of this defendant." 

8ueh conduct is precisely what we have a right to expoctfrom an hon- 
orable attoruoy. Now contrast it with that of the other gentleman. "I 
hope the Court will excuse me from answering." " D > you know any- 
tliing about your client?" Again we hear, " I hope tlie Court will ex- 
cuse me from answering." Why does the Court want to know? The 
Court cannot go on without the defs^ndant. We are proposing to go to 
the jury, and to ask the jury to pass upon this defendant. Without the 
defendant the result of the trial will be a nullity, and why shall the 
Court lose time? Why should the attorney withhold all information 
with i-eference to his client? Where he is, and whether or not he pi'o- 
p.)ses to return, hut for the obvious reason that if his flight is not 
concealed, and we are informed, then his flight will fail, and the 
man will be brought back and ])laccd in the custody of the Court, and 
justice be meted out to him. 

Now, I say, that it' such conduct does not meet with reprehension from 
tiiis Court it will certainly meet with condemnation from the public at 
larg3. I feel, as a member of the bar, and interested in the reputation of 
attorneys, that such conduct cannot pass without the reprehension of the 
Court. I feel that it is the duty of the Court to maintain the 
honor and integrity of the bar; and if misconduct is seen in the 
case of any attorney, then the Court will purge the bar and n()t 
compel us to all stand together. The Court knows how popular it 
is, outside of our profession, to attribute all sorts of low practices 
and designs to members of the bar. We know full well it is unjust in 
many instances, but I hope this Court will not aid that public sentiments 
but will say, now that this case has been brought to its attention, that 
the misconduct of attorneys of this Court, their interference with, or their 
cmnivan3e at, the defeat of justice shall be punished, and that such prac- 
titioners shall be thrown over the bar of this Court. In that way the 
Court will protect itself, will protect the integrity of the bar, and not 
permit attorneys hereafter to interfere with, or connive at, or assist crim- 
inals in escaping from the meshes of the law. 



810 

ARGUMENT OF MR. WATIES. 

]Mr. Waties, in concluding the arguraejit iu behalf of Mr. McMaj^ter, 
said, that the present que.stiou was not only of great gravity to the re- 
spondent, but reached far beyond the individual and the present hour; 
it concerned every individual of the commonwealth. It concerned every 
member of the bar, as well as it did the respondent. 

He would first endeavor to show the sufficiency of the return to the 
rule. The rule recpiires that the respondent should show cause why his 
name shouhl not be stricken from the roll of attorney.-? of this Court for 
contempt in refusing to state the whereabouts of his client, E. T. Avery, 
for Yvhom bail had been taken at the request of Mr. McMaster. 

Now, Mi\ McMaster utterly disclaims any intention to show disre- 
spect or contempt to the Court by his refusal to answer. But the respon- 
dent justified his refusal to answer upon the broad ground that the Court 
had no right to demand an answer, or, in other words, that the Court 
had no right to put the question. If the Court had no authority to ask 
the question, there could certainly be no contempt on the part of the 
respondent in refusing to answer. 

But supposing, for the sake of argument, that the question of the 
Court was legal and legitimate, but that the respondent honestly believed 
that it was not, and that, therefore, he was justified in refusing to answer, 
would their Honors hold him in contempt for a mere error of judgment? 
Beibre their Honors would strike an attorney fi'om the roll, they would 
first iiave to decide that he was mistaken as to his rights and privileges, 
and, if they so decided, and he was bound to answer that or any ques- 
tion propounded, then they would certainly excuse him from contempt, 
if he honestly made the mistake. But it was contended that he was not 
mistaken as to his right. 

To find the respondent guilty of contempt, their Honors would first 
have to find that the Court was authorized to demand of him, as an 
attorney, an answer to the question as to disclosing the whereabouts of 
his client ; and, secondly, that his honest error of judgment, in refusing 
to answer, was no excuse for refusing to answer ; thirdly, that his first 
and highest duty, as an attorney, was not to his client; and, fourtidy, 
that he was not honest and conscientious in the discharge of his duty to 
that client. 

Viewing this as a privileged communication between the attorney and 
client, on what principle could the Court demand that the respondent 
should answer the question? Was it not contrary to the practice of 
Courts? Was it not rather the province of the Court to prevent an 
attorney from disclosing the secrets of his client? How much worse 
would it be were the Court to attempt to iijrce him to disclose ? Green- 



811 

leaf, Volume 1, paragraph 331, said that what an attorney learned aS 
counsellor or attorney, he was not obliged or permitted to disclose. Mr* 
McMaster was asked the whereabouts of Dr. Avery. If Dr. Avery told 
him, it was a secret confided to him by his client, and he was not per" 
mitted to reveal it. Greenleaf says this was the rule of law for the pro- 
tection of the client ; and the best way in which Mr. McMaster protected 
his client was to keep his mouth shut. 

Greenleaf further said, page 332, that no Court would permit an attor- 
ney to disclose his client's secrets ; and, if he attempted to disclose them, 
he would be struck from the roll. The rule which Lord Eldon applied 
to prevent an attorney from disclosing the confidential communication 
of his client, their Honors would not surely apply, to force him to dis- 
close them. 

If the seal of the law was placed on Mr. McMaster's lips, it was there 
still; and it 'must remain there forever, unless removed by the client him- 
self; and the Court would keep it there, for, as Lord Eldou said, they 
would not permit him to remove it. 

He contended that it was better that the interests of criminal justice 
should suffer than that this rule and law of professional confidence be- 
tween counsel and client should be weakened or impaired, in the slightest 
degree. It was better that a criminal should escape than thatthe seal of 
confidence should be broken. 

He would go further, and say that the greater the secret the greater the 
confidence; the more important the communication made to the counsel 
by the client, the more is he, in honor, bound to keep it, both in honor 
and in law. How else could there be any confidence between attorney 
and client ? 

Such a disclosure as Mr. McMaster was asked to make would not only 
be a violation of privilege, but would be contrary to law, and would work 
a manifest injury to society. 

I have the privilege of construing that rule, and I do construe it in 
favor of my client — of my friend^ — for if he were my client I might be 
called upon by the Court to reveal something. 

The District Attorney and his colleague go outside of the rule in their 
effort to correct this respondent. They contend that C'olouel McMaster's 
refusal to answer shows complicity in aiding Avery to escape — tins re- 
fusal to divulge a privileged communication shows complicity in Avery's 
escape. May it please your Honors, in the first place, it is denied that 
there was any escape. Dr. Avery was out on bail, and free to go where 
he pleased. 

Mr. McMaster stands before you to-day, may it please your Honors' 
as pure, upright and conscientious an advocate as there is at this bar 
He has acted throughout this whole matter as became an honorable man 



812 

and a wortliy nttorney of tlii.s Court. He has nothing to blush for, noth- 
inu' to regret, nothing to retract. He can say, with Luther, when called 
on to reeaut before the Diet of Worms, " I cannot ; I may not re- 
cant, because it is neither safe nor well advised to act in any way against 
conscience. Plere I stand. God help me. I cannot do otherwise." 

Mr. Corbin presented an additional authority, in 2 Russell on Crimes, 
909, and at 3 o'clock Court adjourned. 



AN ACT TO Enforce the Right of Citizens of the United States 
TO VoTi: in the Sevef.al States of this Union, and foe other 
Purposes. 

Jje it enacted by the Senate and House of Representatives of the United 
States of America, in Congress assembled, That all citizens of the United 
States, who are, or shall be, otherwise qualified by law to vote at any 
electii)n by the peoi)le, in any State, T'erritory, District, County, city, 
Parish, township, school district, municipality, or other territorial sub- 
division, shall be entitled and allowed to vote at all such elections, with- 
out distinction of race, color or previous condition of servitude ; 
any constitution, law, custom, usage or regulation of any State or 
Territory, or by or under its authority, to the contrary notwith- 
standing. 

Sec. 2. And be it further eriadcd, That if, by or under the authority 
of the Constitution or laws of any State, or the laws of any Territory, 
any act is or sli:ill l)e required to be done as a prerequisite or qualifica- 
tion for voting, and by such Constitution or laws persons or officers are, 
or shall be, charged with the performance of duties in furnishing to citi- 
zens an opportunity to perform such prerequisite, or to become qualified 
to vote, it sliall be tlie duty of every such person and officer to give to all 
citizt^ns of tlie United States the same and equal opportunity t() perform 
such prerequisite, and to become qualified to vote without distinction of 
race, color or previous condition of servitude; and if any such person or 
otiicer shall refuse or knowingly omit to give full effect to this Sec- 
tion, he shall, for every such ofi'ense, forfeit and pay the sum of five hun- 
dred dollars to the person aggrieved thereby, to be recovered by an action 
on tlie case, with full costs and such allowance for counsel fees as 
tlie Court shall deem just, and shall also, for every such offense, be 
deemed guilty of a misdemeanor, and shall, on conviction thereof, be 
fined not less than live luindrcd dollars, or lie iniptisoned not less than 
one month, and not nioi'e than one year, or both, at the discretion of the 
Court. 



813 

Sec. 3. And be it furfher enacted, That, whenever, by or under the 
authority of the Constitution or laws of any State, or the laws of any 
Territory, any act is or shall be required to [he] done by any citizen as 
a prerequisite to qualify or entitle him to vote, the offer of any such 
citizen to perf:>rm the act required to be done as aforesaid shall, if it 
f.iil to be carried into execution by reason of the wrongful act or omis- 
sion aforesaid of the person or officer charged with the duty of receiv- 
ing or permitting such performance or ofier to perform, or acting thereon, 
be deemed and held as a performance in lasv of such act ; and the per- 
son so offering and failing as aforesaid, and being otherwise qualified, 
shall be entitled to vote in the same manner, and to the same extent, as 
if he had in fact performed such act; and any judge, inspector, or other 
officer of election, whose duty it is or shall be to receive, count, certify, reg- 
ter, report, or give effect to the vote of any such citizen who shall wrong- 
fully refuse or omit to receive, count, certify, register, report, or give 
effect to the vote of such citizen, upon the presentation by him of his 
affidavit stating such offer, and the time and place thereof, and the name 
of the officer or person whose duty it was to act thereon, and that he 
was wrongfully prevented by such person or officer from performing- 
such act, shall, for every such offense, forfeit and pay the sum of five 
hundred dollars to the person aggrieved thereby, to be recovered by an 
action on the case, with full costs and such allowance for counsel fees 
as the Court shall deem just, and shall also, for every such ofti'use, 
be guilty of a misdemeanor, and shall, on conviction thereof, be 
fined not less than five hundred dollars, or be imprisoned not less than 
one month, and not more than one year, or both, at the discretion of the 
Court. 

Sec. 4. And be it further enacted, That if any person, by force, bribery, 
threats, intimidation, or other unlawful mean-:, shall hinder, delay, pre- 
vent or obstruct, or shall combine or confederate with others tf) hinder, 
delay, prevent or obstruct, any citizen from <loing any act required to 
be done to qualify him to vote or from voting at any electicm as afore- 
said, such person shall, for every such offense, forfeit and pay the sum 
of five hutidred dollars to the person aggrieved thereby, to he recovered 
by an action on the case, with full costs and such allowance for counsel 
fees as the Court shall deem just, and shall, also, for every such ofi'ense, 
be guilty of a misdemeanor, and shall, on conviction thereof, be fined 
not less than five hundred dollars, or be imprisoned not less than one 
month and not more than one year, or both, at the discretion of the 
Court. 

Sec. 5. And be it further enacted. That if any person shall prevent, 
hinder, control or intimidate, or shall attempt to prevent, hinder, con- 
trol or intimidate, any person from exercising, or in exercising, the right 



814 

of suffrage, to wliora the right of suffrage is secured or guaranteed by 
the fifteenth amendment to the Constitution of the United States, by- 
means of bribery, threats, or threats of depriving such person of emphjy- 
ment or occupation, or of ejecting such person from rented house, lauds, 
or other property, or by threats of refusing to renew leases or con- 
tracts for labor, or by threats of violence to himself or family, such 
person so offending shall be deemed guilty of a misdemeanor, and shall^ 
on conviction thereof, be fined not less than five hundred dollars, or be im- 
prisoned not less than one mouth and not more than one year, or both, at 
the discretion of the Court. 

Sec. 6. And be it. farther enacted, That if two or more persons shall 
band or conspire together, or go in disguise upon the public highway, 
or upon the premises of another, with intent to violate any provision of 
this Act, or to injure, oppress, threaten or intimidate any citizen, with 
intent to prevent or hinder his free exercise and enjoyment of any right 
or privilege granted or secured to him by the Constitution or laws of 
the United States, or because of his having exercised the same, such 
persons shall be held guilty of felony, and, on conviction thereof, shall 
be fined or imprisoned, or both, at the discretion of the Court — the fine 
not to exceed five thousand dollars, and the imprisonment not to exceed 
ten years — and shall, moreover, be thereafter ineligible to, and disabled 
from holding, any office or place of honor, profit or trust created by the 
Constitution or laws of the United States. 

Sec. 7. And be it further enacted, That, if in the act of violating any 
provision in either of the two preceding Sections, any other felony, crime 
or misdemeanor shall be committed, the offender, on conviction of snch 
violation -of said Sections, shall be punished for the same, with such pun- 
ishraeBts as are attached to the said felonies, crimes and misdemeanors, 
by the laws of the State in which the offence may be committed. 

Sec. 8. And be it further enacted. That the District Courts of the 
United States, within their respective Districts, shall have, exclusively of 
the Courts of the United States, cognizance of all crimes and offences 
committed against the provisions of this Act, and also, concurrently 
with the Circuit Courts of the United States, of all causes, civil and 
criminal, arising under this Act, except as herein otherwise provided, 
and the jurisdiction hereby conferred shall be exercised in conformity 
with the laws and practice governing United States Courts ; and all crimes 
and offenf^es committed against the provisions of this Act may be prosecuted 
by the indictment of a Grand Jury, or, in cases of crimes and offences 
not infamous, the prosecution may be either by indictment or informa- 
tion filed by the District Attorney in a Court having jurisdiction. 

Sp:c. 9. And be it further enacted, That the District Attorneys, Mar- 
shals, and Deputy Marshals of the United States, the Commissioners ap- 



815 

pointed by the Circuit and Territorial Courts of the United States, with 
powers of arresting, imprisoning, or bailing offenders against the laws 
of the United States, and every other officer who may be specially era- 
powered by the President of the United States, shall be, and they are 
hereby, specially authorized and required, at the expense of the United 
States, to institute proceedings against all and every person who shall 
violate the provisions of this Act, and cause him or them to be arrested 
and imprisoned, or bailed, as the case may be, for trial before such Court 
of the United States, or Territorial Court, as has cognizance of the of- 
fence. And with a view to afibrd reasonable protection to all persons, in 
their Constitutional right to vote, without distinction of race, color, or 
previous condition of servitude, and to the prompt discharge of the du- 
ties of this Act, it shall be the duty of the Circuit Courts of the United 
States, and the Superior Courts of the Territories of the United States, 
from time to time, to increase the number of Commissioners, so as to 
afibrd a speedy and convenient means for the arrest and examination of 
persons charged with a violation of this Act ; and such Commissioners 
are hereby authorized and required to exercise and discharge all the pow- 
ers and duties conferred on them by this Act, and the same duties with 
regard to oflences created by this Act, as they are authorized by law to 
exercise with regard to other ofiiinces against the laws of the United 
States. 

Sec. 10. And be it further enacted, That it shall be the duty of all 
Marshals and Deputy Marshals to obey and execute all warrants and 
precepts issued under the provisions of this Act, when to them directed ; 
and should any Marshal or Deputy Marshal refuse to receive such warrant 
or other process when tendered, or to use all proper means diligently to ex- 
ecute the same, he shall, on conviction thereof, be fined in the sum of one 
thousand dollars, to the use of the person deprived of the rights conferred 
by this Act. And the better to enable the said Commissioners to execute 
their duties faithfully and efficiently, in conformity with the Constitu- 
tion of the United States and the requirements of this Act, they are 
hereby authorized and empowered, within their districts respectively, to 
appoint, in writing, under their hands, any one or more suitable persons, 
from time to time, to execute all such warrants and other process as may 
be issued by them in the lawful performance of their respective duties, 
and the persons so appointed to execute any warrant or process as afore- 
said shall have authority to summon and call to their aitl the bystanders 
or posse comitatus of the proper County, or such portion of the laud or 
naval forces of the United States, or of the militia, as may be necessary 
to the performance of the duty with which they are charged, and to in- 
sure a faithful observance of the Fifteenth Amendment to the Constitu- 
tion of the United States; and such warrants shall run and be executed 



816 

by said officers anywhere in the State or Territory within which they are 
issued. 

Skc. 11. And be it farther enacted, That any person who shall know- 
ingly and wilfully obstruct, hinder, or prevent any officer or other person 
charged with the execution of any warrant or process issued under the 
provisions of this Act, or any peison or persons lawfully assisting him or 
them from arresting any person for whose appreheii.--;on such warrant 
or jirocess may have been issued, or shall rescue or attempt to rescue 
such person from the custody of the officer or other person or persons, 
or those lawfully assisting as aforesaid, when so arrested pursuant to the 
authority herein given and declared, or shall aid, abet, or assist any per- 
son so arrested as aforesaid, directly or indirectly, to escape from the 
custody of the officer or other person legally authorized as aforesaid, or 
shall harbor or conceal any person for whose arrest a warrant or pro- 
cess shall have been issued as aforesaid, so as to prevent his discovery 
and airest alter notice or knowledge of the iact that a warrant has been 
issued for the api)rehension of such person, shall, for either of said 
offences, be subject to a line not exceeding one thousand dollars, or im- 
prisonment not exceeding six months, or both, at the discretion of the 
Court, on conviction before the District or Circuit Court of the United 
States for the District or Circuit in which said offence nuiy have been 
committGd, or before the proper Court of crminal jurisdiction, if com- 
mitted within any one of the organized Territories of the United 
States. 

Sicc. 12. And be it further enacted, That the Commissioners, District 
Attorneys, the Marshals, their Deputies, and the Clerks of the said Dis- 
trict, Circuit, and Territorial Coiircs shall be paid for their services the 
like fees as may be allowed to them for similar services in other cases. 
The person or persons authorized to execute the process to be issued by 
s ich Comaiissioners f)r the arrest of offrnders against the provisions of 
this Act shall be entitled to the usual fees allowed to the Marshal for an 
arrest for each person he or they may arrest and take bef -re any such 
Commissioner as at'bresaid, with such other fees as may be deemed rea- 
sonable by such Commissioner for such other additional services as may 
be necessarily performed by him or them, such as attending at the exam- 
ination, keeping the prisoner in custody, and providing him with fucOi 
and lodging during his detention and until the final determination uf 
such Commissioner, and in general for performing such other duties ns 
may be required in the premises; such fees to be made up in conformity 
with the fees usually charged by the officers of the Courts of Justice 
within the proper District or County as near as may be practicable, and 
pai<l out of the Treasury of the Uifitcd States, on the certificate of the 
JudiTC of the District witliin which the arrest is made, and to be recov- 



817 

erabie from the defendant as part of the judgement in case of conviction. 

Sec. 13. And be it farther enacted, That it shall be lawful for the 
President of the United State.-^ to eniphiy such part of the land or naval 
forces of the United States, or of the militia, as sluill be necessary to 
aid in the execution of judicial pros-e.^s issued under this Act. 

Sec. 14, And be it further enacted, That, whenever any person shall 
hold otlice, except as a member of Congress or of some State Legisla- 
ture, contrary to the provisions of the third Section of the fourteenth 
Article of Amendment of the Constiiuti<m of the United States, it shall 
be the duty of the District Attorney of the United States, for the District 
in which such person shall hold office, as aforesaid, to proceed against 
such person, by writ ol' ([uo warr mlo, returnable to the Circuit or Dis- 
trict Court of the United States in such District, and to prosecute the 
same to the removal of such person from ofiice ; and any writ of quo 
warranto so brought, as aforesaid, shall take precedence of all other cases 
on the docket of the Court to which it is made returnable, and shall not 
be Ci.mtiuued unless for cause proved to the satisfaction of the Court. 

Sec. 15. And beit farther enacted. That any person who shall hereafter 
knowingljf accept or hold any office under the United States, or any 
State to which he is ineligible untler the third Section of the fourteenth 
Article of Amendment of the Constitution of the United States, or who 
shall attempt to hold or exercise the duties of any such office, shall 
be deemed guilty of a misdemeanor against the United States, and, 
upon conviction thereof before the Circuit or District Court of the 
United States, shall be imprisoned not more than one year, or fined 
not exceeding one thottsand dollars, or both, at the discretion of the 
Court. 

Sec. 16. And be It further enacted, That all persons within the juris- 
diction of the United States shall have the same right in every State 
and Territory in the United States to make and enforce contracts, to 
sue, be parties, give evidence, and to the full and e'pial benefit of all 
laws and proceedings for the security of person and property as is 
enjoyed by white citizen^, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, and none other, 
any law, statute, ordinance, regulation, or custom to the contrary not- 
withstanding. 'No tax or chaige shall be imposed or enforced by any 
State upon any person imiuigratiiig thereto from a foreign country 
which is not equally imposed and enforced upon every person imnd- 
grating to such State from any other foreign country; and any law 
of any State in conflict with this provision is hereby declared null 
and void. 

Sec. 17. And be it further enacted. That any person who, mider color 
of any law, statute, ordinance, regulation, or custom, shall subject, i r 
52 



818 

cause to be su'bjeetec!, any inhabitant of any State or Territory to the 
deprivation of any right secured or protected by the last preceding Sec- 
tion of this Act, or to different punishment, pains, or penalties on account 
of such person being an alien, or by reason of his color or race, than 
is prescribed for the punif-hment of citiz;njs, shall be deemed guilty of a 
misdemeanor, and, on conviction, shall be punished by fine not exceed- 
ing one thousand dollars, or imprisonment notexceding one year, or both, 
in the discretion of the Court. 

SfiC. 18. And be if further enacted, Thai', the Act to protect all persons 
in the United States in their civil rights, and furnish the means of their 
vindication, passed April nine, eighteen hundred and sixty-six, is hereby 
re enacU'd ; and Sections si:cteen and seventeen hereof shall be enforced 
according to the provisions of said Act. 

Sko. 19. And be it further enacted; That if, at any election for represent- 
ative or delegate in the Congress of the United States, any person shall 
knowingly personate and vote, or attempt to vote, in the name of any 
other person, whether living, dead, or fictitious; or vote more than once 
at the same election for any candidate for the same office ; or vote at a 
place where he may not be lawfully entitled to vote; or vote without 
liaving a lawful right to vote ; or do any unlawful act to secure a right 
or an opportunity to vote for himself or any other person ; or by force, 
threat, menace, intimidation, bribery, reward, or ofter, or promise thereof, 
or otherwise unlawfully prevent any qualified voter of any State of the 
Uinted States of America, or of any Territory thereof, from freely exer- 
cising the right of suffrage, or, by any such means, induce any voter to 
refuse to exei-cise such right ; or compel or induce, by any such means, 
or otherwise, any officer of an election in any such State or Territory to 
receive a vote from a person not legally qualified or entitled to vote ; or 
interfere in any manner with any ofhcer of said elections in the discharge 
of his duties; or by any of such means, or other unlawful means, induce 
any officer of an election, or officer whose duty it is to ascertain, announce 
or declare the result of any suL-h election, or give or make any certifi- 
cate, document, or evidence in relation thereto, to violate or refuse to 
comply with his duty, or any law regulating the same; or knovdngly 
and wilfully receive the vote of any person not entitled to vote, or 
refuse to receive the vote of any person entitled to vote; or aid, coun- 
sel, procure, or advise any such voter, person, or officer to do any act 
hereby made a crime, or to omit to do any duty the omission of which 
is hereby made a crime, or attempt to do so, every such person shall 
be deemed guilty of a crime, and shall for such crime be liable to 
prosecution, in any Court of the United States of competent jurisdiction, 
and, on conviction thereof, shall be punished by a fine not exceeding 
five hundred dollars, or by imprisonment for a term not exceeding three 



819 

years, or both, in the discretion of the Court, aud shall pay the costs of 
prosecution. 

Sec. 20. And be it farther enacted, That if, at any registration of voters- 
for an election for representative or delegate in tlie Congress of the 
United States, any person shall knowingly personate and register, or 
attempt to register, in the name of any other person, whether living 
dead, or fictitious, or fraudulently register, or fraudulently attempt to 
register, not having a lawful right so to do ; or do any unlawful act to- 
secure registration for himself or any other person ; or by force, threat,, 
menace, intimidation, bribery, reward, or offer, or promise thereof, or 
other unlawful means, prevent or hinder any person having a lawful 
right to register from duly exercising such right ; or cimipel or induce,. 
by anv of such means, or other unlawful means, any officer of registra- 
tion to admit to registration any person not legally entitled thereto, or 
interfere in any manner with any officer of registration in the discharge 
of his duties, or by any such means, or other unlawful means, induce 
any officer of registration to violate or refuse to comply with his duty, 
or any law regulating the same ; or knowingly and wilfully receive the 
vote of any person not entitled to vote, or refuse to receive the vote of 
any person entitled to vote, or aid, counsel, procure, or advise any such 
voter, person, or officer to do any act herelw made a crime, or to omit 
any act, the omission of which is hereby made a crime, every such per- 
son shall be deemed guilty of a crime, and shall be liable to prose- 
cution aud punisliment therefor, as provided in Section nineteen of 
tliis Act, for persons guilty of any of the crimes therein specified : 
Provided, That every registration made under the laws of any State or 
Territory, for any State or other election at which such representative 
or delegate in Congress shall be chosen, shall be deemed to be a re- 
gistration within the meainng of this Act, notwithstanding the same 
shall also be made for the purposes of any State, territorial or muni- 
cipal election. 

' Sec. 21. And he it further enacted, That whenever, by the laws of any 
State or Territory, the name of any candidate or person to be voted for 
as representative or delegate in Congress shall be required to be printed, 
written, or contained in any ticket or ballot with other candidates or 
persons to be voted for at the same election for State, Territorial, muni- 
cipal, or local officers, it shall be sufficient prima facie evidence, either 
for the purpose of indicting or convicting any person charged with 
voting, or attempting or offering to vote, unlaAvfully, under the provisions 
of the preceding Sections, or for committing either of the offences thereby 
created, to prove that the person so charged or indicted vot'xl, or 
attempted or offered to vote, such ballot or ticket, or committed either of 
the offences named in the preceding Sections of this Act with reference 



820 

to such ballot. Aad the proof and esLabllshraent of such facts shxU be 
taken, held and deemed to be presumptive evidence that such person 
voted, or attempted or offered to vote, for such representative or dele- 
gate, as the case mav be, or that such oftense was committed Avith refer- 
ence to the election of such repr-jsentative or delegate, and shall be suffi- 
cient to warrant his conviction, unless it shall be shown that any such 
ballot, when cast, or attempted or ottered to be cast, by him, did not con- 
tain the name of any candidate for the <jffice ^f representative or dele- 
gate in the Ccmgress of the United States, or that such offense was not 
committed with reference to tiie election of such representative or dele- 
gate. 

Sec. 22. A7id be it farther enacted, Tliat anv ofiiccr of any election at 
which any representative or delegate in tlie Congress of the United 
States shall be voted for, whether such officer of election be appointed 
or created by or under any law or authority of the United States, or by 
or under any State, Territorial, district, or municipal law or authority, 
who shall neglect or refuse to perform any duty in regard to such elec- 
tion required of him by any law of the United States, or of any State 
or Territory thereof ; or violate any duty so imposed, or knowingly do 
any act thereby unauthorized, with intent to affect any such election, or 
the result thereof; or fraudulently make any false certificate of the re- 
sult of such election in regard to such representative or delegate; or 
withhold, conceal, or destroy any certificate of record so required by 
daw respecting, concerning, or pertaining to the election of any such 
representative or delegate ; or neglect or refuse to make and return the 
same as so required by law; or aid, counsel, }>rocure, or advise any 
voter, person, or officer to do any act by this or any of the preceding 
Sections made a crime ; or to omit to do any duty the omission of which 
is by this or any of said Sections made a crime, or attempt to do so, 
shall be deemed guilty of a crime and shall be liable to prosecution and 
punishment therefor, as provided in the nineteenth Section of this Act 
.for persons guilty of any of the crimes therein specified. 

Sec. 23. And be it further enacted. That, whenever any person shall 
be defeated or deprived of his election to any office, except Elector of 
President or Vice President, representative or delegate in Congress, or 
member of a State Legislature, by reason of the denial to any citizen or 
citizens who shall offer to vote, of the right to vote, on account of race, 
color, or previous condition of sei'vitude, his right to hold and enjoy such 
office, and the emoluments thereof, shall not be impaired by such 
denial ; and such person inay bring any appropriate suit or proceeding 
to recover possession of such oliice, and in cases where it shall appear 
that the sole question touching the title to such office arises out of the 
denial of the right to vote to citizens who so oliered to vote on account 



821 

of race, color, or previous condition of servitude, such suit or proceeding 
may be instituted in the Circuit or District Court of the United States 
of the circuit or district iu which such person resides. And said Circuit 
or District Court shall have, concurrently with the State Cnurts, jurisdic- 
tion thereof so far as to determine the rights of the parties to such office 
by reason of the denial of the right guaranteed by the iifteenth Article 
of amendment to the Coustitation of the United States, and secured by 
this Act. 

Approved May 31, 1870. 



AN ACT TO Enforce the Provlsioxs of the Fourteenth Amend- 
ment TO the Constitution of the United States and for other 
Purposes. 

Be it enacted by the Senate and House of Representatives of the United 
States of America, in Congress assembled, That any person who, under 
color of any law, statute, ordinance, regulation, custom, or usage of any 
State, shall subject, or cause to be subjected, any person within the juris- 
diction of the United States, to the deprivation of any rights, privileges, 
or immunities secured by the Constitution of the United States, shall, 
any such law, statute, ordinance,^ regulation, custom, or usage of the 
State to the contrary notwithstanding, be liable to the party injured in 
any action at law, suit in equity, or other proper proceeding for redress ; 
such proceeding to be prosecuted in the several District or Circuit Courts 
of the United States, with and subject to the same rights of appeal, 
review upon error, and other remedies provided in like cases in such 
Courts, under the jjrovisions of the Act of the ninth of April, eighteen 
hundred and sixty-six, entitled "An Act to protect all persons in the 
United States in their civil rights, and to furnish the means of their vin- 
dication ;" and the other remedial laws of the United States which are 
iu their natui'e applicable in such cases. 

Sec. 2. That if two or more persons within any State or Territory of 
the United States shall conspire together to overthrow, or to put down, 
or to destroy, by force, the Government of the United States, or to levy 
war against the United States, or to oppose by force the authority of the 
Government of the United States, or by force, intimidation, or threat to 
prevent, hinder, or delay the execution of any law of the United States, 
or by force to seize, take, or possess any property of the United States 
contrary to the authority thereof, or by force, intimidation, or threat to 



822 

prevtnt any person from accepting or liolding any office or trustor place 
of confidence under the United States, or from discharging the duties 
thereof, or by force, intimidation, or threat to induce any olficer of the 
United States to leave any State, District, or place where his duties as 
such officer might lawfully be performed, or to injure him in his person 
or property on account of his lawful di-schargc of thedutits ot his office, 
or to injure his person while engaged in the lawful discharge of the duties 
of his office, or to injure his property so as to molest, interrupt, hinder, 
or impede him in the discharge of his official duty, or by force, intimida- 
tion, or threat to deter any party or witness in any Court of the United 
States from attending such Court, or from testifying in any matter pend- 
ing in such Court, fully, freely, and truthfully, or to injure any such 
party or witness in his person or property ou accomit of his having so 
attended or testified, or by force, intimidation, or threat to iniluence the 
verdict, presentmeut or indictment of any juror or grand juror in any 
Court of the United States, or to injure such juror in hi< person or 
property on account of any verdict, presentment, or indictaient lawfully 
assented to by him, or on account of his being or having been such juror, 
or shall conspire together, or go in disguise upon the public highway, or 
upon the premises of another for the purpose, either directly or indi- 
rectly, of depriving any person or any class of persons of the equal pro- 
tection of the laws, or of equal privileges or immunities under the laws, 
or for the purjiose of preventing or hindering the constituted authorities 
of any State from giving or securing to all persons within such State the 
equal protection of the laws, or shall conspire together for the purpose (;f 
in any manner impeding, hindering, obstiucting, or defeating the duo 
cou-se of justice in any State or Territoi-y, with intent to deny to any 
citizen of the United States the due and equal protection of the laws, or 
to injure any person in his person or his property for lawfully enforcing 
the right of any person or class of persons to the equal protection of the 
laws, or by force, intimidation, or threat to prevent any citizen of the 
United States lawfully entitled to vote from giving his su})port or advo- 
cacy in a lawful manner towards or in favor of the election of any law- 
fully qualified person as an elector of President or Vice President of the 
United States, or as a member of the Congress of the United States, or 
to injure any such citizen in his person or property on account of such 
support or advocacy, each and every person so offending shall be deemed 
guilty of a high crime, and, upon conviction thereof in any District or 
Circuit Court of the United States, or District or Supreme Court of any 
Territory of the United States having jurisdiction' of similar offenses, 
shall be punished by a fine not less than five hundred nor more than five 
thousand dollars, or by imi)risonnient, with or without hard labor, as the 
Court may determine, for a period of not less than six months nor more 



823 

than six years, as the Coiu't may determine, or hj both sucli fine and 
imprisonment; as the Cuuit shall determine. And if any cue or more 
persons enjjaged in any such consi)iracy shal! do, or canse to be done, 
any act in furtherance of the object of such conspiracy, whereby any 
person shall be injured in his person or property, or deprived of having 
and exercising any right or privilege of a citizen of the United States, 
the person so injured or deprived of such rights and privileges may liave 
and maintain an action ibr the recovery of dami^U'es occasioned by such 
injury or deprivation of riglits and !)riv!leges against any one or more of 
the persons engaged in such conspiracy, sucli action to be prosecuted in 
the proper District or Circuit Court of the United States, with and sub- 
ject to the same rights of appeal, review upon error, and other remedies 
provided iu like cases in such Courts under tlie provi'-ions of the Act of 
April ninth, eighteen hundred and sixty-six, entitled " An Act to protect 
all persons in the United States in their civil rights, and to furnish the 
means of their vindication." 

Sec. o. That in ail cases where insurrection, domestic violence, un- 
lawful combinations, or conspiracies iu any l-^tate shall so obstruct or 
hinder the execution of the lau's thereof, antl of the United States, as 
to deprive any portion or chiss of the people of such State of any of the 
rights, privileges, or immunities, or protection named in the Constitution 
and secured by this Act, and the constituted authorities of such State 
shall either ])e uuabh? to protect, or shali, fr^jm any cau*e, fail in or I'cfuse 
pri)tection of the people in such rights, such facts shall be de(-med a 
denial by such State of the equal -protection of the laws to which they 
are entitled under the Constitution of the United States; and in all such 
cases, or whenever any such insurrection, violence, unlawful combination, 
or conspiracy shall oppose or obstruct the laws of the United States or 
the due execution thereof, or impede or obstruct the due course of justice, 
under the same, it shall be lav/ful for the President, and it shall be his 
duty to take such measures, by the employment of the militia or the land 
and naval forces of the United States, or of either, or by other means, as 
he may deem necessary for the suppression of such insurrection, domestic 
violence, or combinations ; and any person who shall be arrested under 
the provisions of this and the preceding Section shall be delivered to the 
Marshal of the proper District, to be dealt with according to law. 

Sec. 4. That whenever, in any State or part of a State, the unlawful 
combinations named in the preceding Section of this Act shall be organ- 
ized and arint'd, and so numerous and powerful as to be able, by vio- 
lence, to either overthrow or set at defiance tlie constituted authorities of 
such State, and of the United States within such State, or when the con- 
stituted authorities are in complicity with, or shall connive at the un- 
lawful purposes of, such powerful and armed combinations ; and when- 



824 

ever, by reason of either or all of the causes aforesaid, the conviction of' 
such offeuders aud the preservation of' the public safety shall become iu 
such District impracticable, iu every such case such combinations shall 
l>e deemed a rebellion against the Government of the United States, and 
daring the continuance of such rebellion, aud within the limits of the 
District which shall be so under the sway thereof, such limits to be pre- 
scribed by proclamation, it shall be lawful for the President of the United 
States, when iu his judgment the })ublic safety siiall renuire it, to suspend 
the privileges of the writ of habea-:i corpm, to the end thiit such rebellion 
may be overthrown : Provided, That all the provisions of the second 
Section of an Act entided "An Act relating to habeas corpus and regu- 
lating judicial proceedings in certain cases," approved March third, 
eighteen hundred and sixty-three, which relate to the discharge of pris- 
oners other than prisoners of war, and to the penalty for refusing to obey 
the order of the Couit. siuill be in full force so far as the same are appli- 
cable to the jn-ovisious of this Section : Provided, further, That the 
President shall first have made pioclamatioii, as now provided by law, 
commanding such insurgents to disperse: And provided, also. That the 
])rovisions of this Section shall not be in-force after the end of the next 
regular session of Coiigress. 

Sjsc. 5. That no })er.:on shall be a grand or petit juror in any Court of 
the United States upon any inquiry, hearing, or trial of any suit, pro- 
ceeding, or prosecution based upon or arising under the provisions of this 
Act who shall, in the judgment of the Court, be in complicity with any 
such combination or conspiracy; and every such juror shall, before 
entering upon any such inquiry, heaving or trial, take and subscribe an 
oath in open Court that he has never, directly or directly, counselled, 
advised, or voluntarily aided any such combination or conspiracy; and 
each aud every person who shall take this oath, and shall therein swear 
falsely, shall be guilty of perjury, and shall be subject to the pains aud 
])enalties declared against that crime, and the first Section of the Act 
entitled "An Act defining additional causes of challenge and prescribing 
au additional oath for grand and petit jurors in the United States 
Courts," approved June seventeenth, eighteen hundred and sixiy-two, be, 
and the same is hereby, repealed. 

Sec. 6. That any person or persons, having knowledge that any of the 
wrongs conspired to be done and mentioned in the second Section of this 
Act are about to be committed, and having power to prevent or aid in pre- 
venting the same, shall neglect or refuse so to do, and such wrongful act 
shall be connnitted, such person or pci'sons shall be liable to the person 
injured, or his legal representatives, for all damages caused by any such 
wrongful act wliich such first-named person or })ersons by reasonable dili- 
gence could have prevented ; and such damages may be recovered iu au 



825 

action on the case in the proper Circuit Court of the United State?, and 
any number of persons guilty of such wrongful neglect or refusal may 
be joined as defendants in sucii action : Provided, That such action shall 
be commenced within one year after such cause of action shall have 
accrued ; and if the death of any person shall be caused by any such 
^vrongful act and neglect, the legal representatives of such deceased per- 
son shall have such action therefor, and may recover not exceeding five 
thousand dollars damages therein, for the benefit of the widow of such 
deceased person, if any there be, or if tliere be no widow, for the benefit 
of the next of kin of such deceased person. 

Sec. 7. That nothing herein contained shall be construed to supersede 
or repeal any fojmcr Act or law except so far as the same may be repug- 
nant thereto; and any offenses heretofore committed against the tenor 
of any former Act shall be prosecuted, and any proceeding already com- 
menced for the prosecution thereof shall be continued and completed, the 
same as if this Act had not been passed, except so far as the provisions 
of this Act may go to sustain and validate such proceedings. 

Approved April 20, 1611. 



INDICTMENT. 

The following is the indictment in full, upon which the motion to quash 
Vi'as made; and except the clause which charges a conspiracy to interfere 
■with the right of the citizen to bear arms, includes all the charges upon 
which the preceding trials were based: 

[Act May 31, 1S70— Sec. 6.] 

THE UNITED STATES OF AMERICA, 1 

- Fourth Circuit. 
DisTiiicT OF South Carolina. ) 

At a stated term of the Circuit Court of the United States, began and 
holden at Columbia, in said District, on the fourth Monday of Novem- 
ber, A. D. 1871, the Grand Jurors of the United States in and for said Dis- 
trict, to wit: upon their several and re-pecti ve corporal oaths do 
1st Count.'] present: That iVllen Crosby, Sherod Childers alias Bunk 
Childers, Sylvanus Hemphill, Banks Kell, Ilezekiah Porter, 
William Montgomery, Evans Murphy, tc^gether wiih divers other evil 
disposed persons, to the Jurors aforesaid as yet unknown, late of York 
County, in the State of South Carolina, at York County in said District^ 



826 

and within the juripdiction of this Court, ou the 1st day of February, A. 
D. 1871, unUiwfuUy did conspire together with intent to violate the first 
Section of the Act entitled "An Act to Enforce the Right of Citi- 
zens of the United States to Vote in the several States of this Union, and 
for other purposes," approved May 31, 1870, by unlawfully hindering, 
preventing and restraining divers male citizens of the United States of 
African descent, above the age of twenty-one years, qualified to vote at 
any election by the })eople in said County, District, and State, from exer- 
cising the right and privilege of voting, and by other nalawful means, 
not all )wing them, the said male citizens, to vote at an election by the 
l)eople, to be held on the third Wednesday of October, A. D. 1872, within 
the County, District, and State aforesaid, contrary to the Act of Congress 
in such case made and provided, and against the peace and dignity of 
the United States. 

D. T. CORBIN, 
United States District Attorney. 

[Act May 31, 1870.— ^'ec. 6.] 

Fourth Circuit. 



UNITED STATES OF AMERICA,) 



District of South Carolina. j 

At a stated Term of the Circuit Court of the United States, began ^ 
and holden at Columbia, in said District, on the fourth Mon- 
2d Count.'] day of November, A. D. 1871, the Grand Jurors of the 
United States in and for said District, to wit: upon their several 
and rtspective corpoial oaths, do pres<^nt: That Allen Crosby, Sherod 
Childers alias Bunk Chiiders, Sylvanus Hemphill, Banks Kell, Hezekiah 
Porter, William xMontgomery, Evans Murphy, together with divers other 
evil disposed persons, to the Jurors aforesaid as yet unknown, late of 
York County, in the State of South Carolina, at York County, in said 
District, and within the jurisdiction of this Court, ou the 1st day of Feb- 
ruary, A. D. 1871, unlawfully did conspire together with intent to injure, 
oppress, thicateu and intimidate Anv/.'i Rainey, a citizen of the United 
States, with intent to prevent and hinder his free exercise and enjoyment 
of a right and privilege granted and secured to him by the Constitution 
and laws of the United States, to wit: the right of suffrage, contrary 
to the Act of Congress in snch case made ai)d provided, and against the 
})eacc and dignity of the United States. 

D T. CORBIN, 
United States District Attorney. 



827 

[Ad May ?A, I^IQ—Sec^. 6 and 7.] 

UNITED STATES OF AMERICA, '\ 

[- Fourth Gircuit. 
D'iTRiCT OF South Cakolina. ) 

At a stated Term of the Circuit Court of the Uniterl States, becan and 
holdeu at Coluin!)iu, in said District, on the fourth Monday of Novem- 
ber, A. D. 1871, the grand jurors of the United States iu and 
od Count.'] for said District, to wit: upon their several and respective 
oailis, do present, That Allen Crosby, Sherod Childers alias 
Bunk Childers, Sylvanus Hemphill, Baidvs Kell, Hezekiah Porter, William 
Montgomery, Evans Murphy, together with divers other evil disposed 
persons, to the jurors aforesaid as yet unknown, late of York County, in 
the State of South Carolina, at York County, in said District, and 
within the jurisdiction of this Court, on the 1st day of February, A. D. 
1871, unlavrfuUy did conspire together with intent to injure, op- 
press, threaten and iatimi(Uite Amzi Raiuey, a citizen of the United 
States, with intent to prevent and hinder his free exercise and enjoy- 
ment of a right and privilege granted and secured to him by the Con- 
stitution and laws of the United States, to wit : the right of suffrage, 
contrary to the Act of Congress in such case made and provided, and 
against the peace and dignity of the United States. And the jurors 
aforesaid, upon their oatl)s aforesaid, do further })resent, That said Allen 
Crosby, Sherod Childers a/ta.s Bunk Childers, Sylvanus Hemphill, Banks 
Kell, Hezekiah Porter, Williaai Montgomery, Evans Murphy, and others, 
to the jurors aforesaid unknown, about the hour of eleven of the ch)ck iu 
the night on the day and year aforesaid, at the County and District afore- 
said, and within the jurisdiction of this Court, in the act of comuiitting 
the offense aforesaid, as aforesaid set forth and alleged, with force and 
arras, the dwelling house of the said Amzi Rainey, there situate, feloni- 
ously and burglariously did break and enter, with intent to commit a 
felony ; and that the said Alien Crosby, Sherod Childers alias Bunk 
Childers, Sylvanus Hemphill, Banks Kell, Hezekiah Porter, William 
j\Iontgomery, Evans Murphy, and others, to the jurors aforesaid un- 
known, in the said dwelling house there being, iu and upon the said Amzi 
Rainey, in the said dwelling house then being, then and there, unlaw- 
fully, maliciously and I'eloniously, did make and assault; and the said 
Alleu Crosby, Sherod Childers alias Bunk Childers, Sylvanus Hemphill, 
Banks Kell, Hezekiah Porter, William Montgomery, Evans jNLurphy, 
and others, to the jurors aforesaid unknown, the said Amzi Rainey, in 
and upon the head, shoulders and back of the said Amzi Rainey, then 
and there, unlawfully, maliciously and feloniously did strike, cut and 
wound, with intent to do unto said Amzi Rainey some grievous bodily 



828 

harm, contrary to the form of the statute in such cases made and pro- 
vided, and agaiu.-t the peace and diguily of the State of South 
Carolina. 

D. T. CORBIN, 
United States District Attornev. 



[Ad May 31, 1870— &c. 5.] 

Fourth Circuit. 



UNITED STATES OF AMERICA, ") 



District of Soutii Caeolina. ) 

At a stated Term of the Circuit Court of the United States, began 
and iiolden at Columbia, iu said District, on the Fourth Monday of 
November, A. D. 1871, the Grand Jurors of the United 
4/A Count.'] States ill and for said District, to wit: upon their several and 
respective corporal oaths, do present : That Allen Crosby, 
Sherol CaiKlers alii'< Bank Childers, Sylvaaus H-niphill, Banks 
Kell, Hezekiah Porter, William Montgomery, Evans Murphy, hite of 
York County, iu the State of South Carolina, at York County, in said 
Di.-^trict, an<l within the jurisdiction of this Court, on the 1st day of 
February, A. D. 1871, unlawfully did attempt to control Amzi Rainey 
in eA<Mci^iiig the right of suffrage, to whom the right of suffrage is 
s.ecnred and guaranteed by the fifteenth amendment to the Constitu- 
tion of the United Srates, by threats of violence to himself, contrarv 
to the Act of Congres-5, in such case made and provided, and against 
the peace and dignity of the United States. 

D. T. CORBIN, 
United States District Attorney. 

lAct May 31, 1^10. -Sees. 5 and 7.] 

UNITED STATES OF AMERICA,) 

^- Fourth Cireuit. 
District of South Carolina. ) 

At a stated Term of the Circuit (Jourt of the United States, began and 
holden at Colund)ia, in said District, on thefourth Monday of November, 
A. 1). 1871, the Grand Jurors of the United States in and for 
Uh Count.] said District, to wit: upon their several and respective corporal 
oaths do present: Tl)at Allen Crosby, Sherod Childers alias 
Bunk Childers, Syivanus Hemp})ill, Banks Kell, Hezekiah Porter, Wm. 
Montgomery, Evans Murphy, late of York County, in t!ie State of South 
Carolina, at York County, in said Disti'ict. and within the jurisdiction of 
this Court, on the 1st day of February, A. D. 1871, unlawfully did at- 
t.Mnjit to control Anr/i Rainey in exercising the right of suffrage, to whom 
the right of suffrage is secured and guaranteed bv the fifteenth amend- 



829 

ment to the Constitution of the United States, by threats of violence to 
himself, contrary to the Act of Congress, in such case made and provided, 
and against the peace and dignity of the United States. 

And the Jurors aforesaid, upon their oaths aforesaid, do further pre- 
sent, That said Allen Crosb}', Sherod Childers alias Bunk Childers, Svl- 
vanus Hemphill, Bttnks Kell, Hezekiah Porter, AVilliam Montgomery, 
Evans Murphy, aud others, to the Jurors aforesaid unknown, about the 
hour of eleven of the clock at night, on the day and year aforesaid, at 
the County and District aforesaid, and within the jurisdiction of this 
Court, in the act of committing the otlense aforesaid, as aforesaid set 
forth and alleged, with force and arais, the dwelling house of the said 
Amzi Ramsey there situate, feloniously and burglariously did break aud 
enter with intent to commit a felony, and that the said Allen Crosby, 
Sherod Childers alias Bunk Childers, Sylvanus Hemphill, Banks Kell, 
Hezekiah Porter, William Montgomery, Evans ^Murphy, and others, to 
the Jurors aforesaid uid^nown, in the said dwelling house then being, in 
and upon, the said Amzi Bainey, in the said dwelling house there being, 
then and there unlawfully, maliciously aud feloniously did make an as- 
sault, and the said Amzi Rainey, in and upon the head, shoulders and 
back of the said Amzi Raiuey, then and there unlawfully, maliciously 
and feloniously did strike, cut and wound, with intent to do unto said 
Amzi Rainey some grevious bodily liarm, contrary to the form of the 
statute in such case made and provided, and against the peace and dignity 
of the State of South Carolina. 

D. T. CORBIN, 
United States District Attorney. 

lAct May 31, 1870.— *Sec. G.] 

UNITED STATES OF AMERICA,") 

;- Fourth Circuit. 
District of South Carolina. ) 

At a stated Term of the Circuit Court of the United States, began and 
holden at Columbia, in said District, on the fourth Monday of November, 

A. D. 1871, the Grand Jurors of the United States, in and f >r 
6th Cowit.'] said District, to wit: upon theirseveral and respective corporal 

oaths do present, That Allen Crosby, Sherod Childers alias 
Bunk Childers, S\ Ivainis Hemphill, Banks Kell, Hezekiah Porter, William 
Montgomery, Evans Murphy, together with divers other evil disposedi 
{Arsons, to the Jurors aforesaid as yet unknown, late of York County, in 
the State of South Carolina, at York County, in said District, and 
Avithin the jurisdiction of this Court, on the 1st day of February, A. D. 
1871, unlawfully did conspire together with intent to injure, oppress, 



830 

threaten and intimidate Amzi Eainey, a citizen of the United States, 
because of his free exercise of a right and privilege granted and secured 
to him by the Constitution and huvs of the United States, to wit : the 
right of suffrage, contrary to the Act of Congress iu such case made and 
provided, and against the peace and dignity of the United States. 

D. T. CORBIN, 
United States District Attorney. 



UZnITED states of AMERICA, "J 



[Ad. May 31, 1870— aScc. 6.] 

Fourth C'lrcidt. 



District of South Carolina. ) 

At a stated term of the Circuit Court of the United States, began and 
holden at Columbia, in said District, on the fourili Momhxy of November, 
A. D. 1871, the Grand Jurors of the United States in and 
''till Coaiiii ] for said District, to wit: upon their several and respective cor- 
poral oaths d present : That Allen Crosby, Sherod Childers alia-^, 
Bunk Cliildors, Sylvauus Hemj)hill, Banks Kell, Hezekiah Porter, Wil- 
liam Montgomery, Evans Murphy, -together with divers other evil dis- 
posed persons, to the Jurors aforesaid as yet unknown, late of York 
County, in the State of South Carolina, at York County, in said District, 
and within the jurisdiction of this Court, on the 1st day of February, A. 
D. 1871, unlawfully did conspire together with intent to injure, oppress, 
threaten and intimidate Arazi Rainey, a citizen of the United States, be- 
cause of his free exercise of a right and privilege granted and secured to 
him by the Constitution and laws of the United States, to wit : The right 
of suffrage, contrary to th.e Act of Congress in such case made and pro- 
vided, and against the peace and dignity of the United States. And the 
jurors anu'esaid, upon their oath? aforesaid, do further present : That said 
Allen Crosby, Sherod Childers alias Bunk Childers, Sylvauus Hemphill, 
Banks Kell, Hezekiah Porter, William Montgomery, Evans Murphy, 
and others, to the jurors aforesaid unknown, on the day and year afore- 
said, at the County and District aforesaid, and within the jurisdiction of 
this Court, in the act of committing the offense aforesaid, as aforesaid set 
forth and alleged, with force and arms, the dwelling house of the said 
Amzi Rainey, there situate, feloniously and burglariously did break and 
enter, with intent to commit a felony; and that the said Allen Crosby, 
Sherod Childers «7ias Bunk Childers, Sylvanus Hemphill, Banks Kell, 
Hezekiah Porter, William Montgomery, Evans Murphy, and others, to 
the jurors aforesaid unknown, in the said dwelling house then being, in 
and upon the said Amzi Raine}', iu the said dwelling house then being, 
then and there unlawfully, maliciously and feloniously, did make an as- 



831 

sault, and the said Amzi Raiuey, in and upon the liead, shoulders and 
back of the said Amzi Raiuey, then and there unlawfully, nialicously and 
feloJiiously did strike, cut and wound, with intent to do unto said Amzi 
Raiuey, some grievous bodiiy harm, contrary to the form of the statute 
in such cases made and provided, and against the peace and dignity of 
the State of South Carolina. 

D. T. CORBIN, 
United States District Attorney, 



UNITED STATES OF AMERICA,"^ 



[Act May 31, 1870.— /Sec. 6.] 

Fourth Circuit. 



District of South Carolina. j 

At a stated Term of the Circuit Court of the United States, began and 
holden at Ci)lumbia, in said District, on the fourth Monday of Novem- 
ber, A. D. 1871, the Grand Jurors of the United States in 
8th Count.} and for said District, to v\it: upon their several and respective 
corporal oaths do present : That Allen Crosby, Sherod Childers 
alias Bunk Childers, Sylvaaus Hemphill, Banks Kell, Hezekiah Porter, 
William Moatgoraery, Evaus Murphy, together with divers other evil 
disposed persons, to the jurors aforesaid as yet unknown, late of York 
County, iu the State of South Carolina, at York County, in said District, 
aud within the jurisdiction of this Court, on the 1st day of February, 
A. D. 1871, unlawfully did consjiire together, with intent to injure, oppress, 

threaten and intimidate , citizen of the United States, with intent 

to prevent and hinder his free exercise and enjoyment of a right and 
privilege granted anrir secured to him by the Constitution of the United 
States, to wit: The right to be secure iu his person, houses, papers and 
effects, against unreasonable search and seizures, contrary to the Act of 
Congress in such case made and provided, and against the peace and 
dignity of the United States. 

D. T. CORBIN, 
United States District Attorney. 

UNITED STATES OF AMERICA, ] 

■- Fourth Circuit. 
District of South Carolina. ) 

At a stated Term of the Circuit Court of the United States, began 
and holden at Culumbia, in said District, on the fourth Mouday of No- 
vember, A. D. 1871, the Grand Jurors of the United States 
%th Count.'} in and for said District, to wit : upon their several and respective 
corporal oaths do present : That, Allen Crosby, Sherod Chil- 



832 

ders alias Bunk Childers, Sylvanus Hemphill, Biinks Kell, Hezekiah 
Porter, William Montgomery, Evans Murpliy, together with divers 
other evil disposed i)ersoi)s, to the Jurors aforesaid as yet unknown, late 
of York County, in the State of South Carolina, at York County, in 
said District, and within the jurisdiction of this Court, on the 21st day 
of April, A. D. 1871, unlawiully ditl conspire togetlier for the purpose 
of depriving Anizi Rainey of the equal protection of the laws, contrary 
to the Act of Congress in such case made and provided, and against the 
peace and dignity of the United States. 

And the Grand Jurors aforesaid, upon their oaths aforesaid, further 
do present : That Allen CrosV)y, Sherod Childers nlias Bunk Childers, 
Sylvanus Hemphill, Banks Kell, Hezekiali Piirter, Wdliani 
10th 6ou;ii.] Montgomery, Evans Murphy, together with divers oth.erevil 
disposed persons, to the Jurors aforesaid as yet unknown, 
late of York County, in the State of South Carolina, at York County, 
in said Di.strict, and within the jurisdiction of this Court, on the 21st 
day of April, A. D. 1871, unlawfully, did conspire together, for the pur- 
pose of depriving Amzi Rainey of equal privileges and immunities un- 
der the laws, contrary to tlie Act of Congress in such case made and 
provided, and against the peace and dignity of the United States. 

And the Jurors aforesaid, upon their oaths aforesaid, do further 
j)reseut: That Allen Croshy, Siierod Childers alias Bunic Childers, Syl- 
vanus Hemphill, Batiks Kell, Ht-zekiah Porter, William 
llfli Cb(n(f.]]\I()utgoraery, Evans Murphy, together with divers other evil 
disposed persons, to the Jurors aforesaid as yet unknown, 
late of York County, in the State of South Carolina, at York County, 
in said District, and within the jurisdiction of this Court, on the 21st 
day of April, A. D. 1871, unlawfully did consi>«'e together to injure 
Amzi Rainey, a citizen of the United States, lawfully entitled to vote, in 
his person, on account of giving his support, in a lawful manner, in 
favor of the election of A. S. Wallace, a lawfully qualified person, as a 
member of the Congress of the United States, contrary to the Act of 
Congress in such case made and provided, and against the peace and 
dignity of the United States. 

D. T. CORBIN, 
United States District Attorney. 



]IRGDIT COURT OF THE UNITED STxlTES, 



4TH CIECUIT-DISTEICT SOUTH CAEOLINA. 



AMOTION TO QUASH THE INDICTMENT. 

Filed December 4, 1871. 



rPIE UNITED STATES, 

Vs. 
ALLEN CKOSBY, et al 

The defendants, Childers, Koll, Porter and Murphy, implicated with 
:iid Crosby and others, by their attorneys, move the Court to quash the 
ndictment found against them, and the several counts thereof, upon the 
bllowing grounds, to wit : 

As to the said Ist Covnt: 

1. The conspiracy charged is to violate the 1st Section of the Act of 
Vlay^->1, 1870, which Section defines no crime or offence, and forbids 
idthing. 

2. The names of the persons hindered or prevented, or not allowed to 
:ote, are not set forth, nor is it alleged that their names were unknown 
.0 the Grand Jury. 

3. The means by which the unlawful prevention was effected are not 
;et forth. 

4. The specific election at which they were not allowed to vote, 
.vhether for State, County, Municipal, or United States officers or Kepre- 
>entatives in Congress. 

5. The date of the election as stated, third Wednesday of October, 
L872. 

6. That the qualifications of said male citizens to vote are not set 
forth. 

53 



8B4 

As to the 2d Count: 

1. That it is not alleged that said Raiuey was qualifiedi to vote ; 

2. Nor that there was auy election, 

3. The unlawful means are not set forth. 

As to the ?yd Count: 
The defendants rely here upon this further objection, to wit : 
That the burglary and battery charged in this count are not alleged 
as an overt act of the conspiracy, but as a distinct offence against the 
State of South Carolina, as is cognizable by, or within, the jurisdiction of 
this Court, but is exclusively cognizable by the Sti»te Court, having 
jurisdiction of such offences in the said County of York. 

As to the ■Uh Count : 

1. That it does not allege that said Rainey was, at the time when, &c., 
a citizen of the United States ; or, that the right of suffrage was then 
secured to him by the said 15th Amendment. 

2. That it is not alleged that he was otherwise qualified to vote than 
by force of the said amendment. 

3. That no election is set forth. 

As to the 5th Count: 
The defendants rely upon the same objections to this count Jis are set 
forth to the said 2d and 3d Counts. 

As to the Qth Count: 
The defendants rely upon the same objections to this count as are set 
forth to the said 2d Count ; and, in addition, that it is not alleged that 
he had exercised the privilege therein mentioned. 

As to the 1th Count: 
The defendants rely upon the same ol)jections to this count as are set 
forth to the said 2d, 3d and 4th Counts. 

As to the Hth Count: 

1. The means by which he was to be hindered are not set forth. 

2. That it is not alleged which of the rights — those of person or pro- 
perty — were intended to be invaded, searched or seized. 

3. It is not alleged that he was a householder. 

As to the 9th Count : 

1. That it is not averred in what way, or by wliat means, the said 
Rainey was so deprived of the equal protection of the laws. 

2. That it is not averred what were the laws, Federal or State, of the 
protection of which he was so deprived. 



835 

3. That it is not alleged that he was a citizen of the United States, or 
of any State, or any territory of the United States. 

As to the 10th Count : 
The defendants rely upon the same objections as are set forth to the 
9th Count ; and, further, that it is not set forth what privileges or immu- 
nities he was so deprived of. 

^6- to the llih Count: 

1. That it is uncertain — because it does not appear that the conspiracy 
and injury were before or after the election. 

2. That the particular election, or when, or where, it occurred, is not 
set forth, and no day is given, except the date of the conspiracy — that is 
to say, the 21st of April, 1871 — the next day after the Act was passed. 

3. That it is not alleged that said Rainey was qualified to vote at that 
election, or that he was a citizen of the State or resident of the Congres- 
sional District where the election was held. 

4. That it is not alleged that said Wallace was a citizen of the 
United States, or a citizen of the State or District in which said election 
vras held, nor that he was a candidate for election, or that said Rainey 
voted, or intended to vote for him. 

Wherefore, for the above errors and defects so set forth to said indict- 
ment, and the said several counts thereof, and for other errors and 
defects therein apparent, these defendants move the Court that as well 
the said indictment as each and every of the said counts thereof, be 
quashed, and set aside and held for naught. 

CLAWSON, THOMPSON & CLAWSON, 

Attorneys for Defendants, making the motion. 



UNITED STATES OF AMERICA, ^ 

^ Fovriili CircniL 
District of South Carolina. J 

I, Daniel Horlbeck, Clerk of the U. S. Circuit Court, in and for said 
District, do certify that the foregoing eight luindred and thirty- five pages 
contain a true copy of the Proceedings had in the cases therein mentioned, 
at the Stated Term of said Court, begun and holdea on the fourth Mon- 
day of November, A. D. 1871, at Columbia, in said District, as appears 
of record now remaining in said Court. 

(Signed) DANIEL HORLBECK, 

[Seal.] Clerk C. C. District S. C. 



INDEX 



PAGE 

Act of Congress of May 31, 1870 812 

April 20, 1871 821 

A?ke'W, Butler, whipping of 570 

Avery, James William, iudictment against 141 

division of opinion by Court and trial of 

stayed 145 

division of opinion of Court u}»on indict- 
ment of. Ill 

Avery, Dr. E. T.— 

Bond of, forfeited 749 

Trial of '. G54 

jury empanneled in G54 

Opening case to jury by District Attorney G54 

Testivwny for United States. 

By Osmond Gunthorpe 655 

Cross-examination by Wilson (5')^) 

By Lawson B. Davis , doQ 

By K. L. Gunn .' 058 

By Thomas L. Berry 659 

Jlurder of Charlej' Good 660 

By John Caldwell 662 

Ferris raid Cf>4 

By John Thomasson 670 

By Abram Brumlield 672 

Cross-examination by Wilson 675 

By Emiline Brumfield 679 

Cross-examination by Wilson 682 

By Sam Sturgis 685 

Cross-examination by McMaster HS'j 

By Harriet Postle 689 

Cross-examination by McMaster 61'1 

By Isaac A. Postle (;92 

Cross-examination by Wilson <'•'.)-[ 

Re-direct examination by District Attorney 698 

By Tliomas Morehead 699 

Cross-examination by McMaster 7il2 



Avery, Dr. E. T. — Testimony, &c., continued. page 

Re-direct examination by District Attorney 703 

By Governor Fewell 70o 

Cross-examination by McMaster 705 

Re-direct examination 706 

Re-cross examination. 706 

Re-direct examination 706 

Testimony on Part of Defense. 

By Rev. R. E. Cooper 706 

Cross-examination by District Attorney 710 

By Louisa Chambers 7W 

Cross-examination 717 

Re-direct examination 719 

By Kizzy Avery 719 

Cross-examination 722 

By Dr. Talley 729 

Cross-examination 730 

By R. P. Mayrant 731 

Cross-examination 731 

By Franklin N. Brown 734 

Cross-examination 736 

By Frank Caruthers , , 7 38 

Cross-examination 740 

By John A. McCulloch 741 

Cross-examination 742 

Defense closed 743 

Testimony for United States, in Reply. 

By C. N. Bankhard 743 

By Governor Fewell 743 

Cross-examination 743 

By Major Lewis Merrill 7-43 

Cross-examination 745 

Argument of F. W. McMaster, for defense, begun 748 

Disappearance and flight of Dr. E, T. Avery from Court 749 

Explanation of Mr. Wilson 749 

Explanation of Mr. McMaster 749 

Case ordered to proceed 752 

Argument of Mr. McMaster, continued, for defense 752 

Mr. Wilson for defense 757 

District Attorney Corbiu, for United States 760 

Charge to jury by Court 7()3 

Verdict of jury, "guilty " 763 



3 

PAGE 

Bond, Judge, remarks of, to prisoners who had pleaded guilty, before 

passing sentence on them 789 

Bratton, James Kufus et al., 1st indictment against, withdrawn, and 

another presented 139 

Brown, Samuel G., seutenceof 768 

Burglary count withdrawn by District Attorney 92 

Burglary count, objection thereto, by Stanbcry and Johnson 92, 93 

Burglary count, opinion of Court thereon 92, 93 

By-laws, K. K. K 177 

Carroll, 3[ilus, called 154 

Chamberlain, D. H., Attorney General, S. C, appointment of, as 

Special Assistant District Attorney 13 

Chamberlain, D. H., argument of, on motion to qnash indictment 

against Allen Crosby etal 34 

Challenge to jury, peremptory, by defendant 96 

Challenge to jury, ohjection thereto, by District Attorney 96, 97 

Challenge to jury, argument in support of, by Mr. Stanbery 97, 107 

Mr. Johnson 99 

Challenge to jury, argument of Mr. Chamberlain in support of oij- 

jection 101 

Challenge to jury, remarks of Judge Bryan upon 105, 107, 108, 109 

Challenge to jury, opinion of Judge Bond against 100 

Challenge, right of peremptory, by prisoner 9(5 

Challenge, right of peremptory, by prisoner, argument of District 

Attorney Corbin against.^ 96,97, 105, 106 

Challenge, right of peremptory, by prisoner, argument of Stanberv 

for 97, 107 

Challenge, right of peremptory, by prisoner, argument of Johnson 

for 99 

Challenge, right of peremptory, by prisoner, opinion of Judge Bryan 

on 109 

Challenge, right of peremptory, by prisoner, opinion of Judge Bond 

00 109 

Challenge, right of perempiory, by prisoner, decision of Court on... 109 

Childers, Sherod, arraignment of, and plea 95 

plea of " not guilty " withdrawn, and plea of 

" guilty '' entered 110 

interrogated by Court, and sentenced 133, 135 

Cooper, Rev, R. E., never preached against Ku Kluxing 713 

attempt to control testimony of Isaac A. Postle 

by 725 

statement of, to Major Merrill 744, 745 

Corbin, D. T., District Attorney, argument of, on motion to quash 

indictment against Allen Crosbv, et al 58 



4 

PAGE 

Corbin, District Attorney, address to Court upon praying sentence 

upon those who had pleaded guilty 788 

Crosby, Allen, et al., indictment of. 15 

Crosby, Allen, et al., indictment of, argument of Mr. Stanbery 

again St 1 .5 

Crosby, Allen, et al, indictment of, argument of Mr. Chamberlain 

for ^. 34 

Crosby, Allen, et al., indictment of, argument of 5Ir. Corbin for 58 

Crosby, Allen, et al., indictment of, argument of Mr. Johnson 

against 68 

Crosby, Allen, et al., indictment of, opinion of Court on 89 

Counsel, absence of, not sufficient cau^e for delaying trial, per Judge 

Bond 152 

Delay, motion for, remarks of counsel thereon. 95, 96 

Division of opinion between Judge Bond and Judge Bryan 9i 

Dowton, Jack, wliip])ing of. 571 

Farris, Captain, raid upon, in 1868, by K. K 704, 747 

Good, Charley, murder of. ' 468, 469, 660, 657, 628, 631, 637 

Good, Charley, murder of, motive for 657, 659, 660 

Good, Charley, concealment of body in Broad River.. 469, 660, 661, 657 

Good, Charley, whipping of. 205 

Guilty, plea of, Sherod Childers 110, 111 

Hezekiah Porter 110, 111 

Evans Murphy Ill 

AVilliam Montgomery Ill 

William Shearer, and sentence 764 

Sylvanus Shearer, and sentence 766 

Hugh N. Shearer, and sentence 766 

James B. Shearer, and sentence 766 

Samuel G. Brown 767 

Guilt)', pleas of, and sentences — 

Henry Warlick 768 

Milus Carroll 769 

Eli Ross Steward 769 

Josiah Martin 769 

William Jolly 770 

Alfred Blackwell 770 

William F. Ramsay 770 

Thomas J. Price 771 

Taylor Vasey 772 

King Edwards 772 

Christenbury Tai t 773 

Jesse Tait 773 



5 

Guilty, pleas of, find sentences — Continuerl. page 

Frederick Harris 774 

M. T. Phillips 775, 776 

Willam Robbius 775 

Gibeon Canter 776 

D. Lewis Jolly > 777 

AV. S. Blackwell , 777 

Aaron Ewell 777 

Monroe Scruggs 777 

Alexander Bridges 778 

John Burnett 778 

W.P.Burnett 779 

Stephen B. Splawn 779 

Marion Gardner 780 

Chesterfield Scruggs 781 

Henry Suratt 781 

Andrew Cudd , 781 

Martin Hanimett 782 

Lewis Henderson 782 

William Self. 782 

Charles Tait 784 

Junius B. Tindall 784 

Melvin C. Blackwood 784 

John L. Moore 785 

John Can trell '. 785 

Jonas Vasey 785 

James Wall 786 

John C. Wall 787 

David C. McClure 787 

Calvin Cook 787 

Albert P. Clement 787 

Dillard N. Cantrell 787 

Gibeon Cantrell 787 

William Robbins 787 

Habeas Corpus, writ of. 772, 793 

Habeas Corpus, judgment upon 797, 798 

Holmes, Pressly, whipping of 204 

Howell, Amos, whippingof 204, 575 

Ii;uictment against Allen Crosby and others, form of 825 

Jjohnson, Hon. Reverdy, argument on motion to quash indictment 

again^^t Allen Crosby, ei al 68 

Jury, Grand and Petit — 

Challenge to the array of 5 



Jury, Grand and Petit — Continued. page 

Argument of District Attorney thereon 6 

Argument of Reverdy Johnson thereon 6 

Challenge to, withdrawn , 7 

Additional, asked for by District Attorney 7 

Opposition thereto by Mr. Johnson 7 

Reply of District Attorney 8, 9, 10 

Decision of Court thereon 10 

Jury, Grand, members of 10 

Jury, Grand, special oath of. 11 

Jury, Grand, charge by Judge Bond to 12 

Indictment against Allen Crosby and others, motion to quash 13 

Indictment against Allen Crosby and others, motion to quash, ar- 
gument of Mr. Htanbery on 15 

Jury, names of all placed in a hat by Clerk 109 

Ku Klux notice and warning 701 

Ku Kluji Klan in 18G8, object, and who in it 735,736,737, 738 

Leech, Aleck, murder of 662 

Leech, James, whipping of 204 

McCollum, Eli, murder of. 661 

McMaster, F. W., rule on, to show cause why he should not be 

thrown over the bar 749 

McMaster, F. W., contempt — 

Return to rule to show cause, &c 799 

Argument of Mr. Fickling 800 

Argument of Mr. Chamberlain 801 

Argument of Mr. Corbin 807 

Argument of M r. Waties 810 

Martin, Joaiah, called 154 

Militia guns, captured by K. K. K 701 

Miller, John S.— 

Trial of 607 

Opening case to jury by District Attorney 607 

Testimo7iy for the United States. 

By Elias Ramsay 608 

Cross-examination by Wilson 610 

By Andrew Kirkpatrick 613 

Cross-examination by Wilson 618 

By John Ramsay 620 

Cross-examination by AVilsou 623 

By Sam Ferguson 623 

Cross-examination by Wilson 625 



7 

Miller, John S. — Testimony, &c., coutinued. page 
By Thomas L, Berry ' 626 

Cross-examinatiou by Wilson 635 

By Lawson B. Davis 635 

By K. L. Gunu 638 

Cross-examination by Wilson 640 

By Charles W. Foster....' 641 

K. K. Constitution offered (>41, 175 

United States close 641 

Testimony for Defense. 

By Daniel McClure 641 

Cross-examinatiou by District Attorney 642 

By Edward Ross 643 

Cross-examination by District Attorney 643 

By Daniel Carroll 643 

Cross-examination by District Attorney 644 

Argument of W. B. Wilson, Esq., for defense 644, 648 

Argument of District Attorney Corbin for United States... 649, 651 

Verdict of Jury 651 

Sentence of John Millei*, and statement by him to Court... 651, 653 

llitchell, Robert Hayes, case of, called up 139 

Mitchell, Robert Hayes, et al. — 

Motion. to quash indictment of, by Mr. Stanbery 146 

Argument of District Attorney Corbin against motion 147 

Argument of Mr. Johnson for motion 148 

Decision of Court reserved 151 

Mitchell, Robert Hayes — 

Nol. 2^T08. entered on count charging conspiracy against right to 

keep and bear arms 153 

Called 154 

Impanneling jury in case of 155 

Challenge to juror because of service in Circuit or District 

Court within two years, opinion by Court on 158 

Qualified challenge to juror, by District Attorney 159 

Objection to, by Johnson and Stanbery 159, 160 

Right of, sustained by Court 160 

Indictment read to jury 163 

Opening of case to jury by District Attorney Corbin 163 

Testimony for United iSfates. 

By Lieutenant Godfrey 164 

By Albertus Hope 166 



Mitchell, Kobert Hayes — Testimony, &c., contiraicd. page 

Cross-examination 170 

By Kirkknd L. Gunn 173 

K. K. Constitution 175 

K. K. By-laws 177 

Crossexamination by Stanbery 188 

By Charles W. Foster :.. 200 

Cross-examination by Stanbery 209 

By Osmond Gunthorp 215 

Cross-examination by Mr. Stanbery 216 

By Andy Tims 221 

Cross-examination by Hart 224 

Cro^'s-examination by Stanbery 229 

By Gadsden Steel 231 

Cross-examination by Stanbery 235 

By Mrs. Rose Williams 236 

Cross-examination by Stanbery 237 

By Hiram Littlejohn 241 

By John Caldwell 243 

Cross-examination by Johnson 249 

Re-d irect examination 253 

Re-cross exam ination 255 

By Andrew Kiriipatrick 257 

Cross-examination by Johnson •. 201 

By Elias Ramsay 201, 277 

Cross-examination by Johnson 208 

By Sam Ferguson 270 

Cross-examination by Johnson 276 

By Amzi Rainey 278 

By Dick Wilson 2^1 

Cross-examination by Stanbery 2'':«5 

Prosecution dosed 288 

Testimony for Defense. 

By Mrs. Julia Rainey 288 

Cross-examination by District Attorney 291 

By John A. Moroso 292 

Irrelevant, remarks of counsel on 295 

Remarks of Court on 297, 298 

Cross-examination by Chamberlain 299 

By Richard B. Carpenter 300 

By Bill Lindscy 301 

Cross-examination by District Attorney 306 



9 

Mitchell, Robert Hayes — Testimony, &c.., continued. PAGE 
By James Long 310 

Cross-examination by District Attorney 313 

By Jobn B. Fudge 317 

Cross-examination by District Attorney 319 

By A. F. Hinsou 322 

Cross-examination by District Attorney 323 

By Jobn J. Lowry 327 

Cross-examination by District Attorney 333, 338 

By David Thomasson \ 338, 339 

Cross-examination by District Attorney 340 

By Minor O'Connell 342 

Cross-examiujition by District Attorney 344 

By Wm.Bratton 346 

Cross-examination by District Attorney 347 

By Scott Wilson 348 

Cross-examination by District Attorney 349 

By W. K Atkins 351 

Cross-examination by District Attorney 351 

By C. J.Frye ." 353 

Cross-examination by District Attorney 354 

Defense closed 356 

Testimony for United States in Reply. 

By Andy Tims. 356, 373 

Cross-examination by Stanbery 358 

By P. J. OXounell 359 

Cross-examination by Johnson 361 

By J. N. White 364 

By George Witherspoon 368 

Cross-examination by Stanbery 369 

By Lewis Howser 369 

Cross-examination by Johnson 371 

By Allen White 372 

Cross-examination by Johnson 373 

Testimony closed 374 

Argument by Hon. D. H. Chamberlain, for United States.. 375, 399 

Argument by Hon. Henry Stanbery for defense 399, 415 

Argument of Hon. Reverdy Johnson for defense 416, 429 

Arg;ument of Hon. D. T. Corbin, District Attoi-ney, for United 

States 430, 449 

Charge of Court in case of. 449 

Verdict of jury iu case of 451 



10 

Mitchell, Robert Hayes — Testimony. &c., continued. pac4e 

Motion in arrest of judgment, and for new trial, in case of. 452 

Argument, by Stanbery, in favor of 452 

Argument against, by District Attorney Corbin 455 

Over-ruled by Court 457 

Called for sentence — statement by him to Court 457 

Remarks by Judge Bryan, and sentence 459 

Mitchell, John W., and Thomas B. Whitesides — 

Trial of. 460 

Opening case to jury by District Attorney 460 

Tistimovy for the United States. 

By Osmond Gunthorp 461 

Cross-examination by Wilson 462 

By Lawson B. Davis 465 

Cross-examination by Wilson 471 

By Kirklaud L. Gunn 472 

Cross-examination by Wilson 477 

By Charles W. Foster 474 

Cross-examination by Wilson 494 

Cross-examination by Melton 494 

By Henry Latham 495 

By Jerry Clowney 497 

By Harriet Simril 501 

By Sbuford Bo wen 508 

By Mary Robertson 510 

Cross-examination 512 

By James Crosby 513 

Cross-examination by Wilson 517 

By Charles Leach 518 

Cross-examination by Wilson , 519 

By Eliza Leach 521 

Prosecution closed 522 

Testimony for Defense. 

Defendant, John W. Mitchell, offered in his own behalf, but 

refused by Court 522 

By W. C. Whitesides 522 

By John Miller 526 

By Robert Riggans 529 

By Robert R. Darwin 580 

By Mrs. Mary Howe 587 

Cross-examination by District Attorney 539 



11 

PAGE 

itchell, John W., and Thomas B. Whitesides — Testimony, &c., 

continued. 
By Mrs. Hannah N, Whisonant 542 

Cross-examination by District Attorney 545 

By Mitfs Sallie Howe 547 

Cross-examination by District Attorney 549 

By Samuel Mitchell 550 

Cross-examination by District Attorney 552 

By Thomas Bolen 55H 

Cross-examination by District Attorney 558 

Statement by Melton that witness in case of had gone home in 

consequence of threats, &c 5(50 

Statement by District Attorney that, if facts are given him, he will 

prosecute every person who interferes with witnesses, &c 5H1 

By Major Guiton 561 

Cross-examination by District Attorney 563 

Defense closed 570 

Testimony for United States, in Reply. 

By Butler Askew 570 

By Jack Dowton 571 

By C'harles Foster 572 

By William Wilson ^^ 574 

By K. L. GuuD 575 

By Amos Howell 575 

By El ias Ramsay 575 

By John Robertt^on 575 

By Mrs. William Wilson r 57() 

Argument of W. B. Wilson, Esq., for defense in case 576, 579 

Argument of C. D. Melton, Esq., for defense 580, 585 

Argument of Hon. D. H. Chamberlain for the United States. .585, 603 
Verdict of jury in case of J. VV. Mitchell and Thomas B. AVhite- 

sides 603 

Sentence of John W. Mitchell— statement by hiu) 603, 605 

Sentence of Thomas B. Whitesides 606 

Montgomery, William, plea of "not guilty" withdrawn, and plea of 

"guilty" entered Ill 

Montgomery, William, interrogated by Court and sentenced 135, 136 

Moore, Adolphus, whipping of. 206 

Morehead, Thomas, Captain Militia Company at Rock Hill 700 

Murphy, Evans, plea of " not guilty " withdrawn, and plea of 

" guilty " entered Ill 

Murphy, Evans, interrogated by Court and sentenced 136, 137 

Opinion of Court on motion to quash indictment against Allen 

Crosby et al. 89 

Order of trials — District Attorney at liberty to call any case where 

indictment found, and parties are required to be present 153 

Peremptory challenges to jurors allowed, Judge Bond yielding his 

opinion against it 109 



12 

PAq 
Porter, Hezekiah, plea of "not guilty" withdrawn, and plea 

of "guilty" entered 11 

interrogated by Court and sentenced i: 

Postle, liarriet, assault u[)on her and her children by K. K. K 61: 

li^aac A., preacher, raid upim by K. K. K 0; 

hanging and flogging of. Gi 

affidavit of. 6! 

attempt to intimidate and control him by Mr. Cooper 

and Mrs. Avery .".. GDG, Gi)7, I'l 

Punishment, measure of, to be imposed in case of 8herod Childer 
et. al. — 

Argument of Mr. Stanbery on 11 

Argument of Mr. Chamberlain in reply 12 

Argument of Mr. Johnson 12 

Judgment of Court thereon reserved 13: 

Raiuey, Amzi, whipping of. 27 

Raiuey, Amzi, sworn not to vote Radical, ticket again 28 

Roundtree, Tom, murder of. 50. 

motive for 50' 

Severance — defense severs in challenges to jury, and District Attor- 
ney severs in trial of defendants !;>• 

Shearer, Sylvanus, called 15- 

Shearer, William, called 15- 

Shearer, Hugh H., called 15- 

Shearer, James, called 15- 

Shearer, Wiiliatn, Hugh, Sylvauus and James B., sentence of 7G1 

Signs and pass-words, K. K. K IS] 

Skafe, Sam, murder of. 66] 

Stanbery, attempt of, to have Court divide and stay further trial. .109, IK 

Stewart, Eli Ross, called 15-J 

Sturgis, Sara, assault upon 686 

Sturgis, Sam, made to swear not to vote Radical ticket 686 

Thompson, Jerry, whipping of. 204 

Thom[)Son, Mary, whipping of...*^ 576 

A\'ar 1 i cl: , Hen ry , cal 1 ed 154 

W illiams, Jim, murder of 1 63 

testimony of Rose Williams 2o6 

Andy Tims 228 

Gadsden Steel 231 

John Caldwell 245, 248 

Andrew Kirk[)atrick 260 

Elias Ramsay 265, 266 

Sam Ferguson 273, 274 

motive for 175, 234. 242. 222, 245, 361 

character of. 358,359, 360, 365, 368, 373, 

351,348,343,339, 333 

Wilson, Dick, w^hipping of 283, 284 

Wilson, William, a.^sault on him, and attack on his house 208, 576 

"Wilson, William, v.hij)ping of. ; 207 

Witnesses for defense, ajiplioation to be summoned at exjjense of 

United States mu,>t be made in open Court, per Judge Bond 152 

Li- di. 'r;3 



X 



w 



PROCEEDINGS 



IN THT<; 



i« il« 




tt^K 



WW w (^^ sr 



#- 



AT 



COLUMBIA, S. C, 



IN 



THE UiXITED STATES CIRCUIT COURT, 



NOVEMBER TERM, 1871, 



fRINTEO FRO]M GOVERIVMIEIV'X' COPY. 



I COLUMBIA, S. C. : 

I REPUBLICAN PRINTING COMPANY, STATE PRINTERS 

«r:4 . 1872. 

:¥^ ^ 



i 



